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Posted July 9, 2013
Judge Napolitano approaches the theme of his book from the persp
Judge Napolitano approaches the theme of his book from the perspective of a duel between natural law vs. positivism. He reasons that any government action that impinges on natural law violates the constitution. Positivism is the notion that legislation in the name of public benefit results in the collectivism mentality that is at the root of today's paternalistic,socialistic government. What the judge overlooks, however, is that whatever was--or is---the prevailing view of constitutionalism is born of excesses. Our history has been one of balancing excesses. It was no different then; it is no different now. The judge's view of natural law favors collectivism for big business; that is, the ability to set wages, hours and conditions of employment unfettered by the government. Those who know the history of the early 20th century are all-too-familiar with the excesses of private business--sweatshops, child labor abuses, unsanitary and unsafe working conditions, etc. For the judge, natural law allows businesses to associate and act for their greater good, but it's against natural law for labor to do likewise. Napolitano assumes that business and labor are equally free to negotiate working circumstances--an assumption belied by the history of the industrial revolution from the 1870s to the 1920s. Perhaps the judge hasn't read "The Jungle" or perhaps he believes that the free market means freedom for business, but not labor. Certainly, the ":glory days" that Judge Napolitano wants do not include a return to sweatshops, child labor abuses, unhealthy work conditions, etc. I am certain the judge well knows that had the states protected their workers, the federal government would have had no reason to step in. I agree that the New Deal has led to excesses in paternalistic government. Today, too many are dependent on government. But what would Napolitano have government do? Terminate social security and Medicare for those who, by age or disability, can no longer work and provide for themselves or their families? Terminate earned pensions and force into economic ruination those who similarly can no longer work? I certainly don't mind making adjustments for those who can make the adjustments. But asking those past 70 to go back to work or find other means of earning income is simply unrealistic at best, and downright dangerous at worst. As for natural law, I suppose natural law doesn't apply to African-Americans, as it took constitutional amendments and federal legislation to give them the same natural law rights enjoyed by men and property owners. And women as well, since it took constitutional amendments and legislation for women to enjoy some semblance of a level playing field. Judge Napolitano is outraged at the constitutional excesses engaged in by the Supreme Court and Congress since the 1930s. I trust he is equally outraged at the corporate and big business excesses that led to the New Deal. And we can both be upset at the excesses of today's overly paternalistic government; but the overriding importance is to strike a balance, not throw the baby out with the bath water.
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