Judge Andrew Napolitano begins his new book, It is Dangerous to Be Right When the Government is Wrong, with a telling anecdote about Nikita Khrushchev’s disastrous command to grow corn in Siberia. The principle of positivism, which states laws are valid because they were duly enacted, slammed into the eternal laws of a universe that is not much interested in seeing corn grow upon frozen tundra. The resulting carnage was horrifying, and modern politicians have learned absolutely nothing from it.
Napolitano aims to correct that. His book is a witty, erudite, fast-paced primer in libertarian philosophy – from the writings of Locke and Paine, through the modern headlines that would make them nauseous. Rarely will you find a book that exposes the liberal State’s utter contempt for the Constitution with more precision and clarity.
A major theme running through every chapter echoes the Khrushchev story: the profound difference between those who believe human law should find its moral limits within natural law, and those who think a compassionate government should be allowed to do virtually anything, provided it fills out the paperwork correctly. No sooner had I finished reading the book than I heard a local politician on the radio advocating laws against debit-card surcharges because they are, in his judgment, “bad.” Napolitano could slip that anecdote into virtually any chapter of the paperback edition, because it so perfectly summarizes the mind-set he opposes. He offers a playful satire about Congress deciding to repeal the law of gravity, because it’s tough on senior citizens, that earns big laughs because it sounds almost plausible.
Americans are the greatest students of liberty the world has ever seen, but Napolitano shows how far we have to go before we’re ready for post-graduate work. Most of our massive welfare state collapses to dust in the face of the simple, common-sense observation that no individual can have a “right” that compromises the rights of others. Napolitano sees the hoary old ghosts of feudalism lurking at the extremes of government offenses against property rights, especially the notorious Kelo v. City of New London decision, which ratified the government’s ability to seize property and give it to private citizens who claim they can use it for greater public good.
The endgame of Kelo was a vacant lot covered with shredded pieces of the Constitution. “So now,” writes Napolitano, “the City of New London, which seized the Kelo real estate expecting a real estate tax windfall, collects no taxes on the earth where the Kelo cottage once stood. The government thought this piece of land would better serve the community as a vacant lot, rather than remain the homes of its lawful owners.” It is indeed dangerous to be right when the government is wrong.
Property rights are the demilitarized zone between individuals and the State, since there is no more fundamental offense against liberty than the refusal to believe individuals have an absolute right to own things, from real estate to their own labor. (Napolitano even pauses for an interesting discussion about viewing the First Amendment through the lens of property rights.) However, the greatest intellectual challenge to liberty lies in the notion of free association, which earns a superb chapter all to itself. “The right to associate has two components,” Napolitano explains:
Firstly, we are free to associate with those who accept us. This is called positive freedom of association. Secondly, we are free to abstain from associations of which we do not approve. This is called negative freedom of association. Both elements of the right are integral to the freedom as a whole, both are natural rights, and both are protected by the First Amendment to the Constitution.
Because forced association is inherently not voluntary, it is a form of involuntary servitude strictly prohibited by the Thirteenth Amendment of the Constitution which states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” No involuntary servitude shall exist, and it is the government’s job to prevent it.
A modern American can be given no more difficult implication of individual liberty to grapple with. It begins with the right of a fitness studio to reject a 240-pound female jazzercise instructor… and ends with the “right to discriminate” in ways that much of the federal government is currently dedicated to punishing. As Napolitano puts it:
Freedom entails the right to make bad decisions. As a result, as morally repellant as it may be, a racist has the legal right to be a racist. A misogynist has the legal right to be a misogynist. A homophobe has the legal right to be a homophobe. And while the existence of these kinds of people in the world is disappointing and aggravating, they have every right to discriminate based upon their prejudices because they are free human beings. The government is here to protect free choices—even bad ones—from the tyranny of the majority.
America has a long climb ahead of it before reaching the top of that eminently logical but emotionally unacceptable hill.
Napolitano is a big fan of Congressman Ron Paul – in fact, the book is dedicated to him – so it’s not surprising to see the Federal Reserve come in for a good thrashing. The advanced student of liberty should have a hard time accepting the existence of an agency whose very nature demands complete opacity and unquestioning trust from citizens, while providing the political class with a literal license to print money. Also, if you dislike the Transportation Security Agency, you’ll find a kindred spirit behind these pages.
Unfortunately, you’ll also be saddled with Ron Paul’s view of foreign policy, in which all military operations – including World War II – are con jobs launched by power-hungry politicians to whip the masses into a blind frenzy. Global terrorism is dismissed as a boogeyman conjured by Bush and Obama, much as global communism was the pet goblin of their predecessors. This chapter comes halfway through the book, and it’s unlikely the audience hungry for another serving of Bush-lied-people-died made it past Napolitano’s defense of the Citizens United decision confirming the First Amendment rights of big corporations.
Hearing this strong-form liberal critique of war as the ultimate “useful crisis” for statists always makes me reflect on how little of the hardcore imposition on our liberty, which Napolitano describes with such eloquence, was sold to us that way. Discussing the Randolph Bourne essay “War Is the Health of the State,” Napolitano says, “the state needs warfare in order to continue its existence as a coercive force intruding upon our lives.” If only that was true!
The remainder of this very book provides ample evidence that it isn’t. Those aggressive TSA agents with rubber gloves and backscatter machines are severely annoying, but the Kelo case is an outrage. With a little re-working, it could almost be the thesis of this very book that today’s statists have little need of wars to advance their causes. They’ve completely co-opted the moral language of war – you can find it somewhere in practically every speech Barack Obama gives, and it provides the driving force behind the entire “green” crusade – but the real thing soaks up money they’d rather give to labor unions.
Fittingly, Napolitano concludes with the ultimate challenge offered by a serious examination of individual liberty: the importance of consent to a just government, and the corollary inference that the citizens of a just government must have some way to withdraw their consent. In a properly limited government, it would not be difficult for a dissenting citizen to refuse contact with agencies that dismay him. If nothing else, true federalism would leave the option of withdrawing consent from one state government by moving to a different state.
There’s no such easy escape from the D.C. leviathan. The great leftist project of the 20th Century was the construction of a central authority that cannot be evaded, disputed, or denied. Napolitano passionately states what he expects freedom-loving citizens of the 21st Century to do about it:
The entire collapse of human liberty we have seen in this book is precisely what happens when unjust laws are enforced by states and obeyed by persons in those states for too long. Since not enough members of society exercise their positive moral duty of civil disobedience, they have allowed this immoral and unjust system of legalized wealth redistribution and theft to go on for so long and grow so large that it has gained so many allies whose dependence on the system for survival has forced them to oppose and resist any true change.
[…] It is the duty of moral persons to study the ideas espoused by classical liberal philosophers such as John Locke, Thomas Jefferson, and Thomas Paine. We must learn the lessons taught in Common Sense, demanded in the Declaration of Independence, and promised in the Bill of Rights, and we must stop obeying the unjust laws with which the government enslaves.
Anyone prepared for that struggle will find plenty of useful ammunition within the pages of It is Dangerous to be Right When the Government is Wrong. The Judge sets out to make the case for personal freedom, and the case he builds is airtight… provided you can stay with him through the very first chapter, and agree that laws are not moral because the government thinks they are right. You must be willing to insist on retaining control of your life, even as “experts” insist they are better qualified to manage large portions of it.
If you’re not willing to master that essential American concept – among the greatest treasures of an Enlightenment the West has largely forgotten – you should brace yourself for the day that our titanic government decides to get in your face and be wrong.