It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [2]
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This book, like its predecessors, tells the stories that generally do not have happy endings. Most of the times freedom loses. But these are arguments that come from my heart as well as my head; and they should resonate in your heart and head.
Every day in many a way, seen and unseen, liberty is lost. It is the purpose of this book to address the seen and the unseen, to argue for the primacy of the individual over the state, and to help foment a reawakening of the natural human thirst for freedom.
Come with me now on a wild ride through the annals of freedom in America; and as you read these pages, ask yourself if, at each turn, we are closer to freedom or slavery, if the majesty of the law really means what it says, and why—why—it is dangerous to be right when the government is wrong.
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Introduction
Where Do Our Rights Come From?
After a trip to the American Midwest in 1959, Nikita Khrushchev, then the ruler of the Soviet Union, became convinced that corn could solve many of the USSR’s economic woes. Russia had long struggled with miserably inadequate food supplies, the result of years of inept Communist agricultural policies. Having witnessed the wild success of corn production in America, Khrushchev reasoned that the grain could be equally successful in Russia, and thus support increased meat and dairy production necessary to feed the population. He therefore commanded that vast swaths of land, including the frigid tundra of Siberia, be converted to corn crops. As it turned out, corn was entirely unsuitable to the Russian climate, and the plan was a complete disaster.
The reason, of course, that the policy failed was Khrushchev’s ignorance of the immutable fact—the self-evident truth—that corn can only be grown under certain conditions, and Russia’s climate did not provide them. The cost of this misjudgment was wasted resources and prolonged hunger. It is obvious that politicians must enact laws which are in accord with such “truths.” If they do not, then the inevitable consequence is human suffering. There are some things which humans and their constructed governments simply cannot change; that is to say, those things transcend our human capacities and cannot be the object of our will. Individuals and governments are thus always secondary and subject to these truths.
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What are these truths, but “natural laws”? What other laws are there, with which human commands must accord? As we shall see, there are natural rights every human possesses by virtue of being human which protect our essential “yearnings” from government interference. And as we shall also see, man-made laws are only valid to the extent that they comport with and are subject to these natural rights. This is all known as the Natural Law.
This scheme is in contrast to the legal philosophy of Positivism, which says that laws need not pass any kind of moral muster to be considered valid. In other words, laws are purely “posited” by human beings, and governments are not constrained by principles such as human rights, fairness, and justice when making those laws. Not only is this philosophy that “law is whatever the government says it is” untrue, but it has facilitated mankind’s biggest catastrophes and legitimized the most malevolent regimes in human history. Why were Hitler and his policies “evil”? After all, they were enacted by a popularly elected government that followed its own procedures to acquire power and enact lawful laws. Positivists have no answer to this question, because they cannot tell us why killing millions of innocent civilians is wrong: For Positivists, the Final Solution was just as valid as a law prohibiting jaywalking. Thus, under the Positivist scheme, our rights to life, liberty, and the pursuit of happiness are only as safe as our government would care to have them.
Why do we even care whether a law must comport with the Natural Law