It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [106]
Thus, we can think of procedural requirements not as the Natural Law itself, but as being implied by the Natural Law. To be fair, if human beings could be trusted to apply the Natural Law, then many rules of procedure would be superfluous; as James Madison once said, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Our politicians would only ever pass just laws, and prosecutors would only charge criminals who had so much evidence against them that a jury would certainly find them guilty. However because governments are run by individuals just like Governor N’ameyore Price, there must be this additional set of procedural laws to safeguard our liberties.
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Having discussed the basis for due process in the Natural Law, we turn to ask: How do we then determine what that process is? The best answer is to look at history, and determine which procedures have, over time, proven themselves to be necessary for the protection of our natural rights. They are those restrictions on government which the people, having lived under the yoke of oppression and tyranny, have crafted for their own protection. For the duration of this chapter, we shall turn our attention to just such an examination.
The Requirement of Expediency and Public Necessity
Regardless of whether a law infringed upon your natural rights or not, can the government pass a law for absolutely any reason it chooses? Before you answer that question, consider the following laws. In Maine, it is illegal to keep up Christmas decorations after January 14th. In Connecticut, the only thing worse than jaywalking is doing so upside down on one’s hands. In North Dakota, you had better not order beer and pretzels at a bar, because doing so just might make you guilty of soliciting a crime. In New Jersey, the state government posted signs saying “Bear Free Zone” as if to warn the bears to stay out. And, being a dog lover, my personal favorite: In Denver, dogcatchers are required to post notices of impoundment for stray dogs to see.
As noble as giving dogs an opportunity to avoid the kennel might be, according to Positivism, such laws are perfectly valid merely by virtue of being the pronouncement of the government. But, you might ask, “Isn’t the government supposed to pass laws only for certain purposes?” William Blackstone, the eminent English jurist, proclaimed that laws are only permissible where “necessary and expedient for the general advantage of the public.” By necessary, it is meant that the law is a sort of “last resort” in solving whatever problem the government is seeking to remedy; surely, there are more effective ways of keeping our streets free of stray dogs than to post signs threatening them with time on the inside. By expedient, it is meant that those laws are in direct furtherance of the good of innocent individuals. Thus, according to Blackstone, a law which criminalized consuming beer and pretzels together would not be expedient, whereas a law which criminalized consuming beer while driving a car that caused human injury could be.
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Why does this requirement of necessity and expediency exist? Because the only reason government exists is to secure our liberty, and thus when it criminalizes drinking beer and eating pretzels, not only is it infringing upon the natural right to drink and to eat, it is acting outside the scope of its entire purpose. Thus, the first requirement that government must abide by in the process of drafting and enacting a law is that it is necessary to protect the freedom of persons