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A NATION of SHEEP
By ANDREW P. NAPOLITANO
Thomas NelsonCopyright © 2007 Andrew P. Napolitano
All right reserved.
Chapter OneWHERE DOES FREEDOM COME FROM?
In order to understand our constitutional rights and their importance in our lives, we must understand their origins. Although these rights have always been the subject of controversy, our country's founding documents-the Constitution and the Declaration of Independence-show that the men we call our founders generally agreed that the fundamental freedoms traditionally attributable to those who live in a democracy are God-given rights inherent in our humanity. Sadly, in the administrations of virtually every American president, from George Washington to George W. Bush, the government that was formed to protect these basic rights has rejected the significance of our humanity in enforcing the laws, in legislating, and in conducting trials. At all levels of the government, legislators and judges and lawyers and law enforcement officials have become infected with a fad in legal theory that favors the laws created to benefit the few, regardless of the impact on the fundamental rights common to everyone.
IT'S ONLY NATURAL ...
Scholars usually divide legal theories of the origin of our rights into two fundamental camps. Individuals in the first camp believe that the law goes beyond man-made rules and that we are the beneficiaries of a universal body of laws. Laws that do not respect these universal laws, they argue, are not laws at all. These people subscribe to what is called "natural law."
Natural law teaches that the law extends from human nature, which is created by God. The natural law states that because all humans desire freedom from artificial restraint, and because all human beings yearn to be free, our freedoms stem from our very humanity and, ultimately, from the Creator of humanity.
Natural law is not linked to a particular religion, or to religion at all, necessarily. The ideas simply include rights and rules beyond those written or used by government officials. It recognizes that as human beings, we must have a core set of liberties in order to live just and peaceful lives. Humanity is the basis for these rights, and therefore they are common to all of us.
These liberties belong to us by virtue of our nature, and they persist in spite of any action the government may take against them, regardless of alleged necessity or majority rule. Supreme Court Justice Clarence Thomas has remarked that "natural rights and higher law arguments are the best defense of liberty and of limited government." Moreover, he continues, "without recourse to higher law, we abandon our best defense of judicial review-a judiciary active in defending the Constitution. Rather than being a justification for the worst type of judicial activism, higher law is [the] only alternative to the willfulness of both run-amok majorities [in Congress] and run-amok judges [in federal courts]."
Today we face the constant threat of surrendering too much of our natural freedom out of fear of terrorism and a desire for national security. I often hear well-intentioned and even well-educated Americans saying that we need to balance liberty and security, that hard or threatening times should produce less freedom and thus more security. I've even had some crackpots tell me on the air that they are fearful of freedom and yearn for more security. This argument presumes that the same government that can't deliver the mail, can't fill potholes, can't keep track of who has paid taxes, and can't obey its own laws should somehow be trusted to limit and even proscribe our freedoms, and that giving them this power will keep us safe. This is a canard, a pact with the devil, a one-way trip into slavery that is as old as the idea of having a government.
Liberty and security are not to be balanced; liberty is the default position because it is integral to our nature. Every conceivable bias is to be indulged in its favor; all of our liberties are to be protected by security. As Supreme Court Justice Robert Jackson wrote, "Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which make the defense of the Nation worthwhile."
Benjamin Franklin once famously said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." He obviously meant that those who give up freedom in the hope of security will end up with neither, because a government strong enough to take your freedom away from you, just because your fearful neighbors want to give up theirs, cannot be expected to return it. The liberties inherent in the natural law are the only justification for laws aimed at security.
Martin Luther King Jr. also adhered to natural law philosophy. In his famous "Letter from Birmingham Jail," King described the connection between natural law and justice: "How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: "An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust."
Many people reject the claim that we have rights beyond the decrees of government officials. Critics have bellowed that it is difficult to determine what natural law requires in specific situations. Natural liberties might be said to include a number of different particular rights, such as the right to privacy or to free speech, which could in turn be enforced in many ways. The debate over which liberties might count as part of the natural law, and how they ought to be enforced, has baffled thinkers and lawmakers since the theory was introduced. This bafflement has led some to prefer to follow and discuss a written law, even an unjust one, so long as it is written down.
This difficulty has led many critics to question the role of natural law in our legal system. Partly due to laziness and partly because of the attractiveness of the academically trendy alternative, known as "positivism," anti-natural law scholars have failed to grasp the obvious truth of the nature of our government: It is founded on the belief that individual liberties are permanent; Jefferson called them "unalienable." An unalienable right comes from God and is an element of humanity that cannot be given up or legislated away.
The rights of our cousins in Europe were first recognized when the great monarchies began to fall. Think about it: government "giving" liberty. In America, the government first came about because free individuals gave it power. This was the opposite of Europe, where monarchial governments "permitted" individuals to enjoy liberty. Law does not create "right" and "wrong" in matters of liberty and freedom; it recognizes them as boundaries, as an aid to guiding us to justice.
Critics of natural law should read the Declaration of Independence. It recognizes more freedom than all of the government-written laws combined.
It's not surprising that Jefferson and his fellow authors of the Declaration of Independence believed in the natural law. Intellectuals and statesmen have adhered to the natural law for thousands of years, dating back to ancient Greeks and Romans such as Aristotle and Cicero. Cicero, the premier Roman lawyer, reflected that "right is based, not upon man's opinion, but upon Nature." And Aristotle, one of the greatest minds of ancient Greece, argued that "one part of what is politically just is natural, and the other part is legal."
In drafting the Declaration of Independence, Thomas Jefferson was influenced by two prominent English thinkers: John Locke and Thomas Paine. He borrowed considerably from the language and philosophies of both men in drafting the Declaration. For example, both Locke and Paine used the word unalienable to describe human rights.
Locke, in his Second Treatise on Government, wrote, "Reason ... teaches all Mankind ... that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." That immunity from harm includes harm caused by government-language and thoughts clearly echoed in the Declaration and its understanding of natural rights.
In The Rights of Man, Paine wrote that these natural rights include "all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others." The government, argued Jefferson, Locke, and Paine, can only do what is necessary to secure and protect those rights, and it can only use powers granted to it by those who formed it. This is what is meant by "the consent of the governed."
To follow natural law is not to say that all rights are natural; many rights do come from the state. The right to drive a motor vehicle on a government-owned roadway is a state-granted right; hence, the government can lawfully regulate it (by requiring a driver's license, limiting speed, etc.) and lawfully take it away (for example, from habitual drunk drivers).
The fact that freedom comes not from government, not from the consent of the governed, not from the community, but from God and is inherent to our humanity has profound effects on the way all modern governments work. It means that our basic freedoms, such as freedom of the press, freedom of speech, and the right to privacy (which, although not named explicitly in the Constitution, is implied in at least ten places), cannot be disregarded by the government unless we are convicted of violating natural law-in other words, someone else's freedoms-and the government can only convict us if it follows what is called "procedural due process."
Procedural due process means that we know in advance of the violations of natural law that the government will prosecute, that we are fully notified by the government of the charges against us, that we have a fair trial with counsel before a truly neutral judge and jury, that we can confront and challenge the government's evidence against us, that we can summon persons and evidence on our own behalf, that the government must prove our misdeeds beyond a reasonable doubt, and that we have the right to appeal the outcome of that trial to another neutral judge. As you will shortly see, our present government has made every attempt to thwart our right to due process, using claims of national security and state secrets to mask the use of truly dictatorial powers and procedures, profoundly contrary to the natural law.
POSITIVISM: POSITIVE OR NEGATIVE?
The other camp of legal theorists, the so-called positivists, does not accept the connection between humanity and liberty. These theorists care only for the pedigree of the law and the lawmaker; as long as a law is made according to the rules, by an accepted lawmaker, it is the law. Under positivism, the law is whatever those in power say it is, whether that decision is democratic or dictatorial in nature. Under positivism, whoever or whatever controls the government, whether a majority or a minority, always rules and always gets its way.
Positivism is perhaps the most primitive legal theory, having evolved only slightly from the sort of justification that could be offered for following the demands of a tribal chieftain or general-turned-dictator. The theory promotes fear rather than respect.
In this camp, anyone with the power to intimidate his community, such as Hitler under the Nazi regime, can create a law. Positivists are faced with the tough choice of following all the laws, even those made by genocidal dictators, or figuring out a way to explain why the letter of the law should not be followed in isolated cases, without referring to natural law.
To a positivist, the government's goal is to bring about the greatest benefit to the greatest number of people. Under the natural law, the only legitimate goal of government is to secure liberty, which is the freedom to obey one's own free will and conscience, rather than the free wills or consciences of others.
The problem today in America, the greatest and gravest threat to personal freedom in this country, is that the positivists are carrying the day. Under their sway, the government violates the law while busily passing more legislation to abridge our liberties.
However, the significance of natural law has not escaped even the Bush Administration. Natural law, as we have seen, is the basis for our liberty, inspiring the men who drafted the Declaration of Independence and the Constitution. So President Bush has also publicly supported natural law, but unlike Jefferson before him, his statements amount to lip service. At his 2005 inaugural address, President Bush declared, "From the day of our founding, we have proclaimed that every man and woman on this Earth has rights and dignity and matchless value, because they bear the image of the Maker of heaven and Earth." The chapters in this book will demonstrate that President Bush's professed adherence to natural law principles is merely a pretense, the same pretense adhered to by virtually all of his predecessors. You will soon discover the federal government's sinister history of twisting our "rights and dignity and matchless value" to serve its own ends: To appropriate more and more power for itself.
Unfortunately, the majority of us tolerate these plots for control. We vote carelessly and acquiesce to impeachable offenses, allowing the government to quash our liberties and ignore our rights. And because we're busy panicking about terrorism, we neglect to notice that the positivist legal community is using our fear to its advantage. By virtue of the majority vote, the positivists among us are able to write and pass unconstitutional laws, give dangerous powers to public officials, and sap our liberties, all without most people recognizing what has been done to them.
To undo the damage done by all three branches of the federal government, we must vote for and encourage representatives who respect the natural law. We must also engage in open political debate to find ways to promote our natural freedoms. We must not surrender our rights like sheep if we are to uphold the American spirit of rugged individualism.
It is my hope and purpose in writing this book that the good folks who read it will recognize that the government is not our friend, that the gravest dangers to our freedoms lie hidden in a government that has seized them from us, and that vigilance and adherence to natural law can save us from the power-hungry bureaucrats who run the government today.
Excerpted from A NATION of SHEEP by ANDREW P. NAPOLITANO Copyright © 2007 by Andrew P. Napolitano. Excerpted by permission.
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