It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

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  Moreover, the threat of fines can deter otherwise meritorious claims, particularly where those claims are “novel or controversial.” This is often the case for suits against the government, since petitioners are frequently challenging a traditional and entrenched governmental practice, such as segregation. And as has been noted before, “today’s frivolity may be tomorrow’s law.” Thus, in addition to discouraging the redress of legitimate grievances, punishing petitioners who take up these difficult cases stifles the beneficial growth of the law.

  One of the best examples of so-called frivolous lawsuits which eventually became today’s law is the Brown v. Board of Education line of cases. These petitioners in 1954 stood for the position that “separate but equal is inherently unequal,” a difficult argument to make in light of Plessy v. Ferguson’s explicit rejection of that position in 1896. Are these the sorts of developments that we should be discouraging? Or weren’t these exactly the kinds of popular movements which the right to petition the government was intended to protect?

  The Brown v. Board of Education (1954) case is particularly instructive. Governments throughout the United States, mainly in the South, were stubbornly unwilling to cease making public school–related decisions—building schools, hiring and firing teachers, allocating school budgets—based on race. The Congress was unwilling to use its Fourteenth Amendment powers to intercede. Only a petition to the courts to redress grievances liberated generations of African Americans from ignorance spawned by the states.

  As one might then imagine, Rule 11 motions have a well-documented, disproportionate impact on civil rights petitioners; although civil rights claims made up 7.6 percent of total filings in the first two years of the rule’s existence, they made up 22.3 percent of Rule 11 cases. It is time that we abolish Rule 11 and encourage, rather than punish, petitioners to take up their grievances with the government and modify the existing law.

  So why is it that Rule 11 motions have remained the law? A federal judge once said, “Insubstantial lawsuits against high public officials . . . warrant firm application of [Rule 11 because they] undermine the effectiveness of Government.” However, we have already rejected the claim that effectiveness of government can ever trump the need for robust protection of constitutional rights. Fortunately, this judge was not presiding over the legally “insubstantial” Brown v. Board of Education line of cases, which no doubt undermined the effective administration of a segregated school system. If he had, then the dream of Martin Luther King Jr. that one day “the sons of former slaves and the sons of former slave owners will be able to sit down together at a table of brotherhood”12 would have remained just that: A dream.

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  Conclusion

  Let us now rekindle King’s dream with renewed vigor and petition the government to right all of its wrongs. In his famous speech, Dr. King posed the following question to his audience, and I now pose it to you: “When will you be satisfied?” Will it be while our government tortures suspects? Will it be while the government can take away our economic liberties, and hence our ability to earn a livelihood, for nearly any reason it chooses? Will it be while the government can say what kind of healthy, non-abusive personal unions are entitled to legal benefits, and which are not? Will it be while a government, which has dropped an atomic bomb on innocent civilians before, is prepared to do it again? When we are asked that question, we, like Jefferson and King, must answer: “No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.” And this time, we shall not be silenced when told that our clamoring for liberty is “impractical.”

  Does the government work for us, or do we work for the government?

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  Chapter 10

  War . . . War . . . What Is It Good For?:

  The Right to Enjoy Peace

  The year was 1941. Nazi Germany had conquered most of Europe and invaded the USSR. America, having suffered through the Great War and the Great Depression in the prior twenty-five years, remained staunchly opposed to intervention. Franklin Delano Roosevelt, although eager to enter the war against Germany, recognized this popular opinion and promised to remain neutral, so as to secure his reelection: “I have said this before, but I shall say it again and again. Your boys are not going to be sent into any foreign wars.”1 This presented an obvious problem for FDR. In order to “justify” breaking this promise and intervene in the war, he would need a strategy.

  His plan? Provoke the Japanese navy into killing American sailors. On September 27th 1940, Japan, Germany, and Italy entered into a mutual assistance treaty called the Tripartite Pact. The Pact required the three nations to come to each other’s aid and protection if one of the others in the Pact was attacked. In other words, if Japan attacked the United States, the United States would surely retaliate against its aggressor; in doing so, Germany would then come to Japan’s assistance. Essentially, the signing of this mutual assistance treaty gave President Roosevelt exactly what he desired: The window of opportunity to go after Germany. FDR responded to Churchill’s pleas to enter the war, “[Although] I may not [constitutionally] declare war, I may make war.”

  Roosevelt had a number of ways to go about prosecuting this strategy. Shortly after the treaty between Germany, Japan, and Italy was signed, Lieutenant Commander Arthur McCollum of the Office of Naval Intelligence submitted a memorandum proposal to the director of Naval Intelligence, now known as the “McCollum memo.” The memorandum explored the United States’ options when it came to potential actions taken by the Japanese in the South Pacific. The memo included an eight-part plan stating, “It is not believed that in the present state of political opinion the United States government is capable of declaring war against Japan without more ado. . . . If by [the eight-point plan] Japan could be led to commit an overt act of war, so much the better.”2 Demonstrating adherence to and belief in this very provocation strategy, Roosevelt fired Admiral James O. Richardson, commander in chief of the U.S. fleet, who voiced objection to the provocation plan at the White House during a discussion with the president.

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  Part of this strategy involved sending U.S. ships into Japanese waters on so-called pop-up missions. FDR himself confessed, “I just want them to keep popping up here and there and keep the Japs guessing. I don’t mind losing one or two cruisers, but do not take a chance on losing five or six.”3 Keep in mind, two lost cruisers equal the deaths of 1,800 men—roughly the number of men killed at Pearl Harbor. Moreover, Secretary of War Henry L. Stimson’s diary reveals the intent to provoke an attack when the United States issued an ultimatum to Japan twelve days prior to Pearl Harbor, demanding that she remove all troops from China and Indochina, and break the tripartite treaty with Germany and Italy. As Stimson himself said, “We face the delicate question of the diplomatic fencing to be done so as to be sure Japan is put into the wrong and makes the first bad move—overt move.”

  Further, the U.S. government began marshalling its resources in preparation for a full-scale war, including the purchase of “$3.5 billion worth of military supplies from automobile plants alone.”4 When questioned about the institution of the draft, FDR responded that “[your boys] are going into training to form a force so strong that, by its very existence, it will keep the threat of war from our shores.” As history would later prove, this was a complete and utter lie.

  Eventually, FDR’s strategy paid off. The United States continued to monitor Japanese communications, but consciously chose not to prevent the attack. One such message indicated that the Japanese consul in Hawaii was sending information to Tokyo about U.S. naval ships at Pearl Harbor. Another, received just three days before the attack, contained the message “war with the U.S.” and suspiciously disappeared in Washington shortly thereafter.

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  And when the attack did eventually come, all remained quiet and orderly in the White House. As Eleanor Roosevelt would later recount,

&
nbsp; In spite of his anxiety Franklin was in a way more serene [after the attack] than he had appeared in a long time. I think it was steadying to know finally that the die was cast. . . . [It] was far from the shock it proved to the country in general. We had been expecting something of the sort for a long time.5

  What was the ghastly result of Roosevelt’s provocation and failure to prevent the attack? At Pearl Harbor, 2,403 Americans died, and 405,399 Americans were eventually killed throughout the course of World War II.6 As Bettina Bien Greaves, a senior scholar at the Mises Institute, has said, “The Japanese attack on Pearl Harbor made war inevitable. But the attack was not Roosevelt’s reason for going to war. It was his excuse.”

  War Is the Health of the State

  Never let a serious crisis go to waste. What I mean by that is it’s an opportunity to do things you couldn’t do before.

  —RAHM EMANUEL, THEN CHIEF OF STAFF TO PRESIDENT BARACK OBAMA

  As outrageous as FDR’s warmongering was, it raises larger questions about the state’s inescapable motives in declaring war against another. Why is it that FDR was so eager to enter World War II? Was it because he recognized the evil of Fascism, and sought to liberate millions of oppressed individuals around the world, as our history books teach us? When governments enter into wars, is this ever their true intent? Or is there something in the very nature of war that has irresistibly tempted every government since the beginning of organized society?

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  The truth is that the ultimate crisis—war—is a dear friend of the state. In fact, the government uses war as the ultimate means to expand its own power, size, and scope. It does so in a multitude of ways, to which we will return below: Tax and budget increases, security laws and regulations, nationalization of industry, censorship of speech and expression, suspension of due process, warrantless searches and seizures, and blanket arrests of war resisters.7 This list goes on and on. Every one of these measures grossly swells the size and scope of government, thereby stripping us of the freedom to live as we please. The “opportunity,” as Rahm Emanuel states above, to grow, to expand, and to garner power is too alluring and too easy a feat for the state and its politicians to pass up. Mr. Emanuel’s remark fundamentally exemplifies the government’s cavalier and exploitive attitude when it comes to war. The government rejoices in war and utilizes it to leverage its own power. The president’s poll numbers rise in war, the Defense Department’s budget is of no importance, defense contractors close to the government make money, and elected officials get reelected merely for “staying the course.”

  The dire result: The state intentionally exploits war to circumvent the Rule of Law—the United States Constitution. Unfortunately for the government, the Constitution is not suspended during wartime. Professor Robert Higgs of the Independent Institute explains it this way:

  The Constitution makes no provision for its own evisceration during wartime or other crisis, yet time and again during national emergencies the [Supreme Court] justices have allowed the legislative branch and especially the executive branch of government to transcend their constitutionally enumerated powers and to nullify individual rights proclaimed in the Constitution.8

  In other words, war is the time during which the Constitution should be most adhered to and embraced. In reality, the government purposely looks in the other direction.

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  Unfortunately, we as a nation have not yet learned from our mistakes. This ugly pattern of warmongering, provocation, and government growth has repeated itself through history, time and time again. When a major crisis erupts—whether it is a world war or economic depression—there is a public outcry for the government to act in some way. The state, in turn, pounces on the political opportunity to make a grab for power and to do things it does not have the constitutional power to do. The government then acquires authority and political clout, ultimately obliterating the Founders’ deliberate and carefully considered relationship between individual freedom and government.

  More fundamentally, however, war is the most effective assertion of the primacy of the collective over the individual. As Randolph Bourne notes in his essay “War Is the Health of the State,” in times of peace “the sense of the State almost fades out of the consciousness of men”; we go about our daily lives, subject to no one’s will but our own. Moreover, we are naturally concerned with only our affairs as individuals—our jobs, our spiritual development, our families, and our friends. Bourne continues:

  With the shock of war, however, the State comes into its own again. . . . The moment war is declared . . . the mass of the people, through some spiritual alchemy, become convinced that they have willed and executed the deed themselves. They then, with the exception of a few malcontents, proceed to allow themselves to be regimented, coerced, deranged in all the environments of their lives, and turned into a solid manufactory of destruction toward whatever other people may have, in the appointed scheme of things, come within the range of the Government’s disapprobation.

  In other words, the state needs warfare in order to continue its existence as a coercive force intruding upon our lives. War is the state’s way of saying, “I am still important, and am owed your continuing support and allegiance.” Without war, the government would fade away, with no more power over us than Ozymandias’s crumbled, long-forgotten statue lying impotently in the desert. War is the state’s justification for its own existence.

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  The State’s Toolbox: Provocation, Fear, and Hysteria

  The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it.

  —JAMES MADISON

  FDR’s lie to enter World War II was not the first time a president lied to rally support for war, nor will it be the last. A brief examination of our country’s short history demonstrates that many presidents have used self-created fear and hysteria to justify war.

  To garner American support for the “impending” Spanish-American War, President William McKinley touted the sinking of the USS Maine. McKinley claimed a Spanish mine caused the ship’s destruction, when in reality, the ship’s American captain determined that a coal bin explosion was the cause of the Maine’s sinking.

  Similarly, President Woodrow Wilson created the illusion that his soon-to-be World War I enemy—Germany—fired the first shot at the United States, when in reality, Germany was trying to play fair. The German Embassy in Washington notified Wilson’s secretary of state, William Jennings Bryan, that the British passenger ship the Lusitania carried illegal weapons and would become a German target in open waters. Bryan tried to convince Wilson that he should warn Americans of the ship’s danger, but Wilson refused to do so. He saw an “opportunity” in the form of lost American lives, which would present him with a clear and decent motive to enter the war. When the Lusitania went down near the coast of Ireland, 114 Americans went down with it. Thereafter, Secretary of State William Jennings Bryan resigned.

  Scheming like FDR, McKinley, and Wilson, President Lyndon B. Johnson provoked an attack to spark the Vietnam War, claiming that America was shot at first. To carry out his charade, President Johnson pushed the Gulf of Tonkin Resolution, which was itself based on false reports of attacks on American naval forces, through a pliant Congress. In turn, Johnson built up American forces in Southeast Asia and eventually collected more than five hundred thousand American troops to fight in that catastrophic war. Millions of Vietnamese, Cambodians, and Laotians were killed and wounded in the conflict, along with fifty thousand dead young Americans. To what end?

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  Turning to the War on Terror, we see that the more things change, the more they stay the same; presidents in the twenty-first century lie just like their nineteenth- and twentieth-century counterparts. Throughout most of his presidency (and particularly after September 11th), George W. Bush purposefully inspired fear and anxiety in Americans through every channel of communication available t
o him: “We are in imminent danger of attack.” “The terrorists are out there.” “The terrorists want to destroy our way of life.” Bush and his team, not having presented any form of convincing evidence of so-called weapons of mass destruction, lied us into war with Iraq. Professor Robert Higgs elaborates:

  The 9-11 attack, then, is to the Bush administration as the Pearl Harbor attack was to the Roosevelt administration: an enduringly evocative pretext for whatever “retaliatory” measures the government chooses to take, even if, as in the present case, the retaliation is aimed in large part at parties who had nothing to do with the initial attack.9

  Moreover, if the government truly believed that we were all in grave danger, then surely it would shift all of its resources toward eliminating that threat; protecting Americans’ personal freedoms would take precedence above all other government initiatives. However, this has been far from the case. For example, the government enacted an enormous farm bill in 2002 immediately after September 11th which purported to spend $180 billion over the next decade, a 70 percent increase.10 This vast farm bill can be coupled with the $40 billion (and growing . . . ) the federal government spends on education along with the $11 billion dished out annually for “community and regional development.”11 If terrorists are lingering in our airports, what is Congress doing spending money on fertilizer, math books, job training programs, and peonies? Professor Robert Higgs argues convincingly: