As I write this review of Judge Andrew Napolitano’s A Nation of Sheep, I am about 37,000 feet above the ground in a Southwest Airlines Boeing 737. That means that I dutifully took off my shoes, belt and whatever else I had on my being that was metallic and went sheep-like through the infamous Transportation Security Administration gauntlet.
On my trip to the airport, I made sure I did not violate speed limits — or at least drive fast enough to be conspicuous on the highway — and at the rest stops, I did not park in the spaces that were reserved for Pennsylvania state troopers. Once on the plane, I did not violate FAA regulations or do anything that would call unwanted attention to me. When we land in Las Vegas, I will make sure that I do exactly what the authorities tell me, and when I fly back home in four days, you can bet I will not place my flying "privileges" in jeopardy.
To most Americans, obeying the authorities at all times, especially in the post-9/11 age, seems like the thing to do. I recall a conversation with a prominent conservative evangelical who works in Washington, D.C., barking the following words to me: "Are you telling me that our government is tyrannical?" The tone of his voice, and the things he said afterward clearly indicated that the U.S. Government, and especially government under the Republican Party, displays no telltale signs of tyranny.
After all, he reasoned, tyranny is carried out by people with "SS" on their collars, who wear leather boots, goose step, give stiff-armed salutes, and speak in a foreign language. Tyranny is Hitler, or Stalin, or Pol Pot, or Bill and Hillary Clinton.
Judge Napolitano is not buying any of this sophistry, and in A Nation of Sheep, he explains unequivocally that my Republican operative friend is wrong. Whatever belief that Americans hold in regard to their rights as guaranteed by the Constitution of the United States, reality is much different. The USA no longer is the Land of the Free, no matter how many times that line is belted out when people sing the Star-Spangled Banner.
Napolitano wastes no time in laying out the grim picture that is the wreckage of long-held American freedoms:
Picture this: The Attorney General of the United States testifies under oath that the president is not ordering federal agents to read the mail, listen to the telephone calls, and monitor the computer keystrokes of ordinary Americans, without a warrant to do so from a judge. That would be criminal. But six months later, the president admits that he has done so.
Picture this: The Constitution prohibits Congress from abridging free speech. But suddenly, Congress made it a crime to talk about receiving self-written warrants from an FBI agent.
Such things, Napolitano notes, are not imaginary, but are the present state of U.S. policy. These things are done in the name of "protecting the homeland," but the good judge is not buying that line, nor does he agree with the premise that in order to "preserve freedom," the state needs to take away "some" of those very freedoms it supposedly protects. Napolitano asks the simple question: "How can the government possibly preserve freedom by taking it away?"
After his introduction, in which Napolitano clearly lays out his thesis, he then explains the natural rights origin of freedom, and how many of the founders of the United States held to a natural rights position. Law, in their view, existed to protect individual liberties from those who would deny them. Today, the deniers of liberty are those legally entrusted to protect it.
Napolitano quotes Benjamin Franklin, who certainly knew something about a natural rights origin of law: "Those who give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." The judge explains that people who are willing to give up liberty are giving power to a government that will take away the rest of their liberties, and make the people even more unsafe, as a predatory government never brings safety.
In his first chapter, Napolitano takes issue with legal positivists, who seem to dot the political landscape these days. I remember speaking to a True Believing socialist who held a high place in President Jimmy Carter’s government, as he told me, "The Constitution is whatever the Supreme Court says it is."
Certainly, it seems that legal positivism holds sway. From the writings of Judge Richard Posner to the Federalist Society to the New York Times to the leaders of both major political parties (or the "Republicrats or Democans"), the idea of natural rights and natural liberty seem not only passé, but also downright subversive to Good Government. Even though politicians will make passing remarks about individual rights and Constitutional government, nonetheless they govern as legal positivists who do what they want whenever they have enough weapons to back up their positions.
In Chapter Two, Napolitano asks the simple question: "Are you a sheep or a wolf?" Sheep, he writes, "stay with their herd and follow their shepherd without questioning where he is leading them. Sheep trust that the shepherd looks out for their safety."
While most Americans would not like being called sheep, nonetheless the conversation in the TSA lines generally moves along a "it’s inconvenient, but I am willing to put up with it because it makes us safer" line. Americans dutifully accept the tickets police officers give them for slight infractions of the speed limit, and if anyone resists in the slightest, Americans will give unqualified support to the police when they tase or even shoot that person who really posed no danger to anyone.
From there the Good Judge goes through a litany of sins committed by the state, from the self-written warrants that federal officers now may write to the destruction of habeas corpus. Government at all levels is destroying rights and most Americans seem not to care, or will make excuses for the state.
Yet, the first aim that Napolitano takes is not at the authorities, as critical as he is of them. Rather, he writes that Americans have become sheep, and the state is the Bad Shepherd. Perhaps the greatest irony comes with the annual July 4 celebrations in which Americans now hold to be a day to give homage and honor to their government. That July 4 marks the signing of a document that declared the British state to have an illegitimate claim upon the lives of the signers and American colonials is lost completely in the mix of parades and fireworks (which are set off by state-approved entities — for public safety, of course).
That the present U.S. Government makes King George’s "tyrannical" rule look to be downright benign libertarianism does not seem to faze Americans at all. If one were to challenge the state (as opposed to telling a bunch of Democrats, heads nodding all, that George W. Bush is a Really Bad Guy), one is seen as challenging freedom. Indeed, we have gone from a view of the state being an entity that was supposed to protect liberty to an entity that protects us by taking away liberty.
The reasons for this decline are many, and they have been discussed in other articles and papers. I would like to present a different view, one that has the economist’s explanation. It goes back to my dutifully and quietly standing in the TSA line.
Yes, I knew that the TSA is a terrible organization that has no place in a free society. Heck, I even have written articles to that point. Yes, I knew that the kind of searches that the TSA does regularly are things that our Founding Fathers would never have tolerated.
But, I just wanted to get on the plane. Any resistance on my part would mean I would have to pay my university hundreds of dollars for the air fare, lodging, my advance for meals, and the like, since I would not be permitted to fly that day. Moreover, any resistance on my part would have meant I could be charged with "interfering with the duties of a federal officer," which carries 20 years in prison.
Resistance would have meant I would be out of work and in prison, and my family would be on the streets. Resistance would have been something for which I would have had to pay the price — alone. The TSA would have declared that its officers "carried out their duties as they have been trained" and most Americans would have agreed that whatever punishment I received was deserved.
In economics, we would say simply that the marginal costs I would have incurred for resistance would have outweighed any benefits on the margin that I would have gained from standing up to the TSA. Not only would my life and the lives of my wife and children be destroyed, but nothing good would come of it. The TSA would be given even more power, and my life would be over and government would have grown even more.
Robert Higgs has pointed out that governments grow because they promote and exploit fear. The idea is that people come to believe that unless the state is protecting them, the "bad guys" might hurt or kill them.
However, there is another aspect of the state and fear, and that is the fear that all of us have of the state and the individuals who work for it. On the local level, there are police, tax collectors, social workers, and others who are given the power to destroy our lives — and not pay a price, themselves. On the state and federal level, it is even worse. Resistance really can be dangerous.
The problem is that people — liberals and conservatives — believe that those who resist are the bad guys. Government cannot be the "bad guys," no matter what happens. Yes, in conversations with Democrats where I work, they are all-too-happy to pin the label of "tyrant" on George W. Bush. But, when I bring up the abuses of the Clinton Administration, from the massacre at Waco to the vicious bombing of Serbia, they suddenly become Defenders of State Supremacy. It is not that these people are against misuse of government power; they just want their people to be able to wield the batons and shoot the guns.
Governments grow because the benefits are concentrated and the costs are diffused. Yet, they also grow because the penalties for resisting injustice are draconian and are felt by that relatively small number of people who resist. At the same time, there is little sympathy for the resisters, but much sympathy and support for the abusers.
There seems to be an inevitability regarding the nature of the growth of government and the subsequent cowing of the people. Yes, as the Good Judge says, we truly have become a nation of sheep. The shame is that we have a heritage of freedom, but have thrown it away with both hands. However, they still let us get on the planes.
Although I might seem to be pessimistic, in truth, freedom and liberty always have been on the defensive throughout human history. We are given thousands of excuses for giving up our freedom, or not resisting the authorities when they try to deprive us of our God-given liberties.