It Is Dangerous to Be Right When the Government Is Wrong Read online

  i

  IT IS DANGEROUS TO

  BE RIGHT

  WHEN THE

  GOVERNMENT

  IS WRONG

  ii

  Also by Andrew P. Napolitano

  Constitutional Chaos: What Happens When Government Breaks Its Own Laws

  The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land

  A Nation of Sheep

  Dred Scott’s Revenge: A Legal History of Race and Freedom in America

  Lies the Government Told You: Myth, Power, and Deception in American History

  iii

  IT IS DANGEROUS TO

  BE RIGHT

  WHEN THE

  GOVERNMENT

  IS WRONG

  THE CASE FOR PERSONAL FREEDOM

  ANDREW P. NAPOLITANO

  iv

  © 2011 by Andrew P. Napolitano

  All rights reserved. No portion of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, scanning, or other—except for brief quotations in critical reviews or articles, without the prior written permission of the publisher.

  Published in Nashville, Tennessee, by Thomas Nelson. Thomas Nelson is a registered trademark of Thomas Nelson, Inc.

  Thomas Nelson, Inc., titles may be purchased in bulk for educational, business, fund-raising, or sales promotional use. For information, please e-mail [email protected].

  Library of Congress Cataloging-in-Publication Data

  Napolitano, Andrew P.

  It is dangerous to be right when the government is wrong : the case for personal freedom / by Andrew P. Napolitano.

  p. cm.

  Includes bibliographical references and index.

  ISBN 978-1-59555-350-8 (alk. paper)

  1. Civil rights--United States. 2. Civil rights--Philosophy. 3. Liberty--Philosophy. 4. Natural law--Philosophy. I. Title.

  JC599.U5N25 2011

  323.0973--dc23

  2011019142

  Printed in the United States of America

  11 12 13 14 15 QGF 6 5 4 3 2 1

  v

  This book is dedicated to

  Congressman Ron Paul,

  Physician, Philosopher, Economist, Public Servant,

  and Defender of the Constitution.

  Through his tireless efforts,

  Freedom itself

  has been rekindled

  in the hearts of millions of Americans.

  vii

  “Our rulers will best promote the improvement of the people by strictly confining themselves to their own legitimate duties—by leaving capital to find its most lucrative course, commodities their fair price, industry and intelligence their natural reward, idleness and folly their natural punishment—by maintaining peace, by defending property, by diminishing the price of law and by observing strict economy in every department of the State. Let the government do this: The people will assuredly do the rest.”

  —THOMAS BABINGTON MACAULAY

  “It is dangerous to be right when the government is wrong.”

  —VOLTAIRE

  “Does the government exist to protect our freedoms, or do we exist to serve the government?”

  —ANONYMOUS

  “You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”

  —PRESIDENT JOHN ADAMS

  ix

  Contents

  Author’s Note: Is Freedom a Myth or Reality?

  Introduction: Where Do Our Rights Come From?

  Chapter 1:

  Jefferson’s Masterpiece: The Declaration of Independence

  Chapter 2:

  Get Off My Land: The Right to Own Property

  Chapter 3:

  Names Will Never Hurt Me: The Freedom of Speech

  Chapter 4:

  I Left My Rights in San Francisco: The Freedom of Association

  Chapter 5:

  You Can Leave Any Time You Want: The Freedom to Travel

  Chapter 6:

  You Can Leave Me Alone: The Right to Privacy

  Chapter 7:

  Hands Off: You Own Your Body

  Chapter 8:

  Sticks and Stones Will Break My Bones: The Right to Self-Defense

  Chapter 9:

  You’ll Hear from Me: The Right to Petition the Government for Redress of Grievances

  Chapter 10:

  War . . . War . . . What Is It Good For?: The Right to Enjoy Peace

  Chapter 11:

  When the Devil Turns Round on You: The Right to Fairness from the Government

  Chapter 12:

  A Dime Isn’t Worth a Penny Anymore: The Right to Sound Money

  Chapter 13:

  Theft by Any Other Name: The Right to Spend Your Own Money

  Chapter 14:

  A Ride on Dr. Feinberg’s Bus: The Right to Be Governed by Laws with Moral Limits

  Chapter 15:

  Ignoring Stupidity: The Right to Reject the State

  Acknowledgments

  Notes

  Index

  About the Author

  xi

  Author’s Note

  Is Freedom a Myth or Reality?

  Does the government exist to serve us or to master us? If the government exists to serve us and if freedom is part of our humanity, how can the government take freedom from us? Is human freedom in America a myth, or is it reality?

  In all my previous written works, I have emphasized the theme that all human beings possess natural rights as part of our humanity. In the Judeo-Christian tradition, we view these rights as gifts from our Creator. This is particularly so if you are an American, and if you mark the founding of this nation at July 4th 1776, as it was then that the Continental Congress promulgated in the Declaration of Independence Jefferson’s immortal—though hardly novel—words to the effect that we humans are created equal and are endowed by our Creator with certain inalienable rights, and among these are life, liberty, and the pursuit of happiness. Historians have speculated that Jefferson originally planned to use the concept of property ownership in that iconic litany of human rights, but his fear of addressing slavery in the same document in which he had characterized the long train of abuses visited upon the colonists by the king of England, would have opened the Declaration and its signers to charges of hypocrisy.

  Nevertheless, Talmudic and Christian scholars, and renowned skeptics, even atheists and deists, had long held, by Jefferson’s time, that the divine right of kings was a myth, that all humans own their own bodies, and that personal freedoms are integral to those bodies. Whether the ultimate source of human freedom is found in theology or biology, freedom exists, freedom is ours by nature, and the long history of the world is really one unceasing, increasing catalogue of the epic battles for personal freedoms against tyranny.

  xii

  Stated differently, I have argued in my work at Fox News, as a judge, as a lawyer, as an author, lecturer, and law school professor that our basic human liberties—thought, speech, press, worship, travel, privacy, association, self-defense, bodily integrity, dominion over ownership of property, fairness from the government, and the presumption of liberty at all times under all circumstances and in all conflicts—are the essence of humanity.

  If you read the Bill of Rights—the first ten amendments of the Constitution—you will see that the theme of my other works, and of this book, was pretty much accepted by the Framers. As you will re
ad recounted here, they, like I, were skeptical of Big Government. Some, like Patrick Henry and George Mason, were, like I am, skeptical of all government. The Framers viewed, as do I, the only legitimate role of government as protecting freedom. That connotes protection from force and fraud, but it surely does not connote punishing the politically unorthodox, transferring wealth, regulating personal private behavior, stealing property, or manipulating currency. I suspect that if you actually picked up this book and have read these introductory remarks up to this point, you will generally agree with me: So far so good.

  Now the dark part: There is no human liberty, natural or constitutional, expressly guaranteed in the Constitution or traditionally viewed as belonging to all persons, that has not been nullified by the government in America. We are deluding ourselves if we really think that the government thinks that the so-called guarantees of freedoms are truly guarantees. They are not. They have been tolerated by American governments unless and until the governments feel threatened by them. Of course, a guarantee that can be suspended whenever those obligated on the guarantee no longer feel bound by it, is no guarantee whatsoever.

  Throughout our history, persons in America have had all natural rights denied by different levels of government, from slavery to abortion, from punishment for speech to theft of property, from denial of due process to invasions of privacy; and the government has prevailed. This book is my sixth book. All have been unhappy discussions about the Constitution and the government’s unrestrained willingness to disregard it.

  xiii

  This book, like its predecessors, tells the stories that generally do not have happy endings. Most of the times freedom loses. But these are arguments that come from my heart as well as my head; and they should resonate in your heart and head.

  Every day in many a way, seen and unseen, liberty is lost. It is the purpose of this book to address the seen and the unseen, to argue for the primacy of the individual over the state, and to help foment a reawakening of the natural human thirst for freedom.

  Come with me now on a wild ride through the annals of freedom in America; and as you read these pages, ask yourself if, at each turn, we are closer to freedom or slavery, if the majesty of the law really means what it says, and why—why—it is dangerous to be right when the government is wrong.

  xv

  Introduction

  Where Do Our Rights Come From?

  After a trip to the American Midwest in 1959, Nikita Khrushchev, then the ruler of the Soviet Union, became convinced that corn could solve many of the USSR’s economic woes. Russia had long struggled with miserably inadequate food supplies, the result of years of inept Communist agricultural policies. Having witnessed the wild success of corn production in America, Khrushchev reasoned that the grain could be equally successful in Russia, and thus support increased meat and dairy production necessary to feed the population. He therefore commanded that vast swaths of land, including the frigid tundra of Siberia, be converted to corn crops. As it turned out, corn was entirely unsuitable to the Russian climate, and the plan was a complete disaster.

  The reason, of course, that the policy failed was Khrushchev’s ignorance of the immutable fact—the self-evident truth—that corn can only be grown under certain conditions, and Russia’s climate did not provide them. The cost of this misjudgment was wasted resources and prolonged hunger. It is obvious that politicians must enact laws which are in accord with such “truths.” If they do not, then the inevitable consequence is human suffering. There are some things which humans and their constructed governments simply cannot change; that is to say, those things transcend our human capacities and cannot be the object of our will. Individuals and governments are thus always secondary and subject to these truths.

  xvi

  What are these truths, but “natural laws”? What other laws are there, with which human commands must accord? As we shall see, there are natural rights every human possesses by virtue of being human which protect our essential “yearnings” from government interference. And as we shall also see, man-made laws are only valid to the extent that they comport with and are subject to these natural rights. This is all known as the Natural Law.

  This scheme is in contrast to the legal philosophy of Positivism, which says that laws need not pass any kind of moral muster to be considered valid. In other words, laws are purely “posited” by human beings, and governments are not constrained by principles such as human rights, fairness, and justice when making those laws. Not only is this philosophy that “law is whatever the government says it is” untrue, but it has facilitated mankind’s biggest catastrophes and legitimized the most malevolent regimes in human history. Why were Hitler and his policies “evil”? After all, they were enacted by a popularly elected government that followed its own procedures to acquire power and enact lawful laws. Positivists have no answer to this question, because they cannot tell us why killing millions of innocent civilians is wrong: For Positivists, the Final Solution was just as valid as a law prohibiting jaywalking. Thus, under the Positivist scheme, our rights to life, liberty, and the pursuit of happiness are only as safe as our government would care to have them.

  Why do we even care whether a law must comport with the Natural Law to be considered valid? After all, if the consequence of not obeying a law is imprisonment, then we will obey that law regardless of whether it is valid or not. The answer is because, like Khrushchev’s corn plan, every time the government’s commands flout the Natural Law, evil occurs, and we lose sight of the dream which our Founders enshrined for us in the Declaration of Independence and the Constitution. We must hold the government accountable for its violations of our natural rights if we are ever to have liberty. As Jefferson once said, “Eternal vigilance is the price of liberty.” And as St. Augustine said and St. Thomas Aquinas taught, “An unjust law is no law at all.”1

  xvii

  This Congress Hereby Declares Gravity to Be Illegal: It Is Too Much of a Downer

  Before we can discuss what precisely the Natural Law encompasses, we must examine its basis in the Eternal Law. The Eternal Law can essentially be thought of as those laws which govern the functioning of the universe, such as the laws of physics, anatomy, chemistry, mathematics, and biology. These laws are imprinted into the very order and nature of things. As an example, molecules of water can only ever be comprised of two hydrogen atoms and one oxygen atom. Change that composition, and you no longer have water. Moreover, the laws of chemistry also dictate that when water is cooled to below thirty-two degrees Fahrenheit, its molecular structure shifts, and it turns into ice. Whether one thinks of these laws as scientific rules, or the product of the divine and infallible will of God, it cannot change the following: These “truths” are immutable, and the universe is and always will be subject to them.

  Furthermore, these rules are self-evident, which is to say that although we may attempt to understand their workings, their truthfulness requires no explanation or proof. When humans study science, they are essentially trying to recognize and explain those rules to which we are subject, and thus be able to predict the future outcome of an interaction between two or more “things.” The field of medicine, for example, tries to understand how a bacterial infection will respond to a particular antibiotic. If we do so, then we can know when and under what circumstances a particular antibody should be prescribed to restore the body to its normal, healthy state. We are therefore operating within the Eternal Law; and as any scientist will tell you, scientific rules don’t change. Only man-made theories for what those rules are and how they operate may change.

  However, without an explanation or understanding, those rules remain just as “true”: Penicillin will combat certain infections, and gravity will always pull things toward the center of the earth, regardless of whether or not we understand how. In other words, explanation and human understanding cannot make those truths more “true”: They rely on nothing human for their existence. If they did, then they would change along with
all of the vagaries in taste and flaws in reasoning of the human mind. Thus, these laws transcend the temporal human mind and all of its imperfections. Although this may seem abstract now, it will make more sense when we explore other kinds of laws which do require an explanation for their truth, and a basis for their existence.

  xviii

  Consider what would happen if, based upon legislative findings that gravity was causing too many injuries to falling senior citizens, Congress declared that henceforth all things shall fall at a slower speed. Clearly, this would not change the way that matter interacts with gravity, and thus the manner in which the universe functions. Rather, it would just distort other (man-made) calculations of the force of gravity: Although gravitational force would no doubt be calculated at lower numbers due to Congress’s laws, falling would hurt just as much. Consequently, we would sadly have just as many injured senior citizens as we did before, but we would have the illusion that Congress was doing something positive to protect seniors.

  It would be equally ridiculous if Congress tried to declare that 2 + 2 = 22, or by printing money, there was more “value” in an economy with which to purchase goods and services. As St. Thomas More’s character states in Robert Bolt’s play A Man for All Seasons, “Some men think the Earth is round, others think it flat; . . . . But if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? No.” Clearly, the Eternal Law is an absolute limit on the will and power of the government. Thus, it is another self-evident truth that humans can never alter, and are always trumped by, the eternal and natural laws, or if you prefer, God’s laws and nature’s laws, or as Jefferson said, “The Laws of Nature and of Nature’s God.”