The Natural Right To Be Free

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It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom by Andrew P. Napolitano (Nashville: Thomas Nelson, 2011); 240 pages.

Three recent books on libertarianism – Jeffrey A. Miron’s Libertarianism, from A to Z (Basic Books, 2010); Jacob H. Huebert’s Libertarianism Today (Praeger, 2010); and Tom G. Palmer’s Realizing Freedom: Libertarian Theory, History, and Practice (Cato Institute, 2009) – although they are quite different as to their nature and purpose, have one thing in common: the word libertarian in their title.

A possible drawback to those titles is that people who have an aversion to what they think is libertarianism might not be inclined to peruse those works. Is it possible to have a book on libertarianism that doesn’t include the word in the title? Andrew Napolitano’s new book, It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom, answers that question in the affirmative. It is most definitely a book on libertarianism. Although it doesn’t contain the word in the title, has no entry for libertarianism in the index, only twice mentions libertarianism and libertarians, and rarely refers to someone (twice) or something (thrice) as being libertarian, it is nevertheless a book that espouses what is unmistakably libertarianism.

That is because libertarianism is simply the philosophy of freedom: freedom for one to do with his person and property as he chooses as long as in doing so he doesn’t aggress against the person or property of another. “The only freedom which deserves the name,” said political philosopher John Stuart Mill, “is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” Or, in the simple words of Leonard Read, “anything that’s peaceful.

Although other books on libertarianism might give non-libertarians a problem with their title, Napolitano’s book might give libertarians a problem because of the author. After all, is not Napolitano the senior judicial analyst for Fox News? Didn’t he host Freedom Watch on the Fox Business Network? Isn’t Fox the home of the conservative anti-libertarians Bill O’Reilly and Sean Hannity?

Napolitano is indeed a Fox personality, but he is also a former New Jersey superior court judge, a professor of constitutional law, a nationally recognized lecturer on the Constitution, the author of five other books, and – let there be no doubt about it – a radical libertarian in the tradition of Murray Rothbard.

Don’t think for a minute that I say that because Napolitano merely quotes Rothbard in the book. He certainly does, along with other libertarians and sympathizers such as Ron Paul, Thomas Paine, Ludwig von Mises, Henry Hazlitt, Frank Chodorov, Friedrich Hayek, Richard Epstein, Robert Higgs, John Locke, Ayn Rand, Walter Williams, and yours truly. The book is even dedicated to Ron Paul. But on the great question of the state, Napolitano is a Rothbardian of the first order.

It Is Dangerous to Be Right When the Government Is Wrong is a passionately written and eminently readable book. Most of its fifteen chapters are between 16 and 19 pages long. Each chapter is further divided into sections and ends with a conclusion. The font is large enough and the leading (the space between lines) wide enough for my aging eyes. The chapters are first augmented with an author’s note and introduction and then by endnotes and an index.

The title of the book is a quotation from Voltaire, as indicated at the beginning of the book. But in addition to that theme, there are a number of others that are evident throughout – such as, you can’t trust the government; government should follow the same rules as individuals; government is the greatest violator of rights; government interference in anything always has unseen and disastrous consequences; freedom is a natural right independent of the government; men have a natural right to disobey the government; the only legitimate function of government is to protect freedom; and, as much as Americans may not want to admit it, there is no natural or constitutional liberty that has not been nullified by the U.S. government.

Appealing to natural law, natural rights, and the Declaration of Independence, the introduction and the first chapter of the book lay the foundation of the natural right of all men to be free, to have control over their own persons and property, and not have their rights infringed by government. Napolitano views the nonagression principle as the cornerstone of “a libertarian understanding of Natural Rights” and the structure of social interactions.

The rest of the chapters focus on specific freedoms, some specifically protected by the Bill of Rights (speech, association, privacy, petition, self-defense, due process) and some not (property, travel, self-ownership, peace, sound money, keeping the fruits of one’s labor, not being made a criminal for victimless crimes, rejecting the state). Napolitano sees property rights as the key to it all, not just “the right to control tangible, external things,” but “with a property right to one’s own body.” But whether a right is specifically mentioned by the Constitution or not is irrelevant, for as the judge makes abundantly clear, rights don’t come from governments, constitutions, or bills of rights. They are part of our humanity. Liberty should be presumed “at all times under all circumstances and in all conflicts.”

Failings of the Constitution

Although Napolitano is a constitutional scholar, is a defender of the Constitution, appeals to the Constitution, and advocates that the government follow the Constitution, he is not a slave to the Constitution. He criticizes the “takings” and “just compensation” clauses in the Fifth Amendment because he reasons that “eminent domain power is not a just power.” Tariffs violate the “property rights of sellers” and taxation is “an evil in itself” because it violates “natural property rights.” The “commerce” clause in Article I is used by Congress “to assault our individual commercial liberties.” And though the Constitution authorizes the government to declare war and borrow money, it doesn’t follow that those actions are always good things.

When Napolitano says that “no person has the right to tell another person how to order his life, and no human may impose his will forcibly or coercively to deprive another human of his free will,” he really means it. Prostitution is a “victimless crime.” As long as it is voluntary, “there is no justification for governmental intervention.” Want to consume unhealthy foods and beverages? “It is not the job or interest of the government to determine what should or should not be consumed by a free individual.” That, of course, includes the right to partake of drugs, “any drug.” Drug prohibition “is a failed public policy that must be abolished.” Obscenity restrictions are themselves obscene. Only conduct “which can properly be described as harmful, and not merely offensive, can be criminalized.”

Criminalizing dangerous or risky behavior is “hopelessly subjective and opens the door to the regulation of practically any activity the government chooses.” Consensual acts between individual persons have no victim and therefore cannot properly be crimes. Naturally, Napolitano opposes “criminal prohibitions on various forms of gambling.” I was particularly impressed with the author’s defense of organ sales – all seven pages of it. His conclusion? “We must leave this predicament, like any supply-and-demand scenario, to the markets.”

Napolitano perceptibly recognizes how all of these restrictions on individual and commercial freedom come about in the first place: people “go into government in order to utilize its powers to tell others how to live their lives.” They “often prefer to have the state, and not themselves, solve their problems for them because doing so is much more ‘convenient,’ even if it comes at the expense of liberty.”

Napolitano views all gun-control laws as a violation of the Second Amendment and the natural right to keep and bear arms. He believes, with John Lott, that more guns mean less crime. But, he correctly notes, the Supreme Court did not go far enough to defend gun rights in the Heller case (2008) or the McDonald case (2010).

Napolitano really shines in his chapter on taxation. Not only does he not recommend the FairTax or some other tax-reform plan, he charges the sales tax with being “a direct affront on the natural right to trade.” That is because he considers all taxation to be institutionalized theft, a forceful taking of property, and “another form of majority rule cleverly disguised as government initiative, by which one group can live off of another.” Taxation in essence “establishes a legal right on the part of the government to your property and the product of your labor.” It “acts as the great enabler for all of government’s most tyrannical actions.” Napolitano destroys the arguments that we receive government services in proportion to what we pay in taxes, that taxes are necessary, and that taxes are justified by public necessity.

Conservative statists will bristle the most at the chapter on war, subtitled, “The Right to Enjoy Peace.” Here Napolitano explains how Franklin Roosevelt steered the nation into World War II. He likewise is not kind to presidents William McKinley, Woodrow Wilson, Lyndon Johnson, or George W. Bush for their warmongering and lies. Napolitano avows that “war is the most effective assertion of the primacy of the collective over the individual.” The draft is “involuntary servitude” and counter to individual freedom. The military-industrial complex is “the biggest, bloodiest, and most culpable criminal organization in American history.” The state needs war “in order to continue its existence as a coercive force intruding upon our lives.” He agrees with Randolph Bourne that war is the health of the state and with Gen. Smedley Butler that war is a racket.

Free association

Napolitano is courageous in his defense of liberty and probing in his questions.

The freedom of association is both positive and negative. Both elements are “integral to the freedom as a whole.” Private entities have the right to discriminate on the basis of race, sex, sexual orientation, religion, or anything else. Freedom entails the freedom to make bad decisions, racist decisions, misogynist decisions, and anti-homosexual decisions.

The freedom of association extends equally to businesses as well “because a private business is a compilation of free individuals.” The Community Reinvestment Act tramples “the right to contract freely.” Some of the Civil Rights Act of 1964 is unconstitutional because its net result is “forced association.” The real problem with segregation was that racist Jim Crow laws were the result of government enforcement, not “free individual action.”

Because he does not believe that marriage should be an institution of the state, Napolitano asks, “Why must we seek the approval of the government to enter into marriages? Why is the government involved at all with the institution of marriage?”

Unlike that of the conservatives we hear on Fox, Napolitano’s solution to the country’s woes is not the election of Republicans. He maintains that we have “one Big Government Party” with two wings: “A Republican wing that prefers war, deficits, assaults on civil liberties, and corporate welfare; and a Democratic wing that prefers war, taxes, assaults on commercial liberties, and individual welfare.” Both wings not only are not devoted to the Constitution, they “openly mock it.”

In Napolitano’s mind, nothing connected in any way with the government is a solution. He has nothing but contempt for the state and its nefarious legislation, unjust laws, and unconstitutional regulations. From the Alien and Sedition Acts to the Espionage Act; from the National Labor Relations Act to the USA PATRIOT Act – Napolitano disdains the state and all its evil works: rent control; minimum-wage laws; construction permits; TSA porno scanners and groping goons; police roadblocks; collective bargaining without consent; and the Federal Reserve with its inflation, cronyism, central planning, business cycles, and counterfeiting.

Napolitano is skeptical of all government. Guarantees of freedom have been tolerated by American governments “unless and until the governments feel threatened by them.” Americans “should be constantly questioning the validity of our officials’ commands.” The “danger that befalls individuals inevitably comes from the government.” We must “exercise our natural right to disobey the government.” The “stranglehold the federal government has over our everyday lives is almost impossible to escape without a complete abolition of the government.”

The “final, and capstone natural right, is the right not to consent to any government.” We must “stop obeying the unjust laws with which the government enslaves.” And of course, “the government makes it dangerous for us to be right when it is wrong.” To protect liberty from government tyranny at all levels, Napolitano advocates a tripartite nullification: jury nullification of state prosecutors, state nullification of federal laws, and individual nullification of state and local actions that violate their natural rights.

The judge’s solution to the problems we face is a simple one: freedom, “the unfettered ability to choose to follow your own conscience and free will, not that of someone in the government.” The role of government is limited to preserving freedom because “the bigger the government, the smaller the amount of individual liberty; the bigger the government, the more it can regulate every aspect of our lives which strips us of our rights and liberties.” Liberty should always be the rule and not the exception.

Napolitano is relentless and uncompromising in his defense of freedom. Reading It Is Dangerous to Be Right When the Government Is Wrong will cause people who think they believe in freedom to pause and reflect on whether they really do. This is the most libertarian and the most radical of Judge Napolitano’s books. I consider it one of the most powerful and convincing cases for personal freedom I have ever read.

Reprinted from The Future of Freedom Foundation.

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