Judge Andrew P. Napolitano – Natural Law As Restraint Against Tyranny
by William Barbe
Judge Andrew P. Napolitano, once a Fox News TV show host – and now an outspoken critic of the US government – delivered a short, intriguing, and, I believe, important speech at the Mises Institute in Costa Mesa, California, on November 8th, 2014.
He began by talking about the origins of Natural Laws, beginning with this quote from Sir Thomas More’s treason case under Henry VIII:
Some men say the earth is flat.
Some men say the earth is round.
But if it is flat, could Parliament make it round?
And if it round, could the kings command flatten it?
More was appealing to the jury of the Laws of Nature that restrain even the government. This was the classic Natural Law argument. More was not the originator of this argument; that was Saint Thomas Aquinas nearly 800 years ago. The English liberal philosopher John Locke picked up on this, as did Thomas Jefferson when he wrote the Declaration of Independence, and James Madison when he was a Scrivener for the US Constitution.
Thomas Jefferson’s version of More’s phrase — “We are endowed by our creator with certain inalienable rights and among these are life, liberty, and the pursuit of happiness” — articulates the view that our rights come from our humanity.
Napolitano asks: What are these rights that come from humanity? And how can the government trample them? The concept of Natural Rights articulated by Aquinas is that there are areas of human behavior for which we do not need a government permission slip in order to make free choices. Things like freedom to develop your own personality, to think as you wish, to say what you think, the right to worship or not to worship, to assemble in groups or to refuse to assemble, to petition the government for redress of your differences, and the right to defend yourself against tyrants. These are the quintessential ‘American rights’. The right to be left alone, for example, codified in the Fourth Amendment today is called the ‘right to privacy’.
Napolitano answers with the theory that we have surrendered some of our rights to the government so that the government will protect the rights that we have not surrendered. The idea is that the government derives its power from the consent of the governed. He argues that no one is alive today that consented when the Constitution was enacted, therefore it is a fiction. The fiction is that we consented to surrender our rights where in reality our rights have been stolen from us through the use of force.