Racism, Roe, and Natural Law

Judge Andrew Napolitano on the hard cases

By: Bonnie Kristian

Regular readers of the Young Americans for Liberty blog (www.yaliberty.org) are familiar with “Freedom Watch,” an online Fox News show hosted by Judge Andrew Napolitano. Featuring guests like Meltdown author Tom Woods and liberty-minded British MEP Daniel Hannan, “Freedom Watch” offers reasoned perspectives on economics, foreign policy, and civil liberties each week.

Yet Napolitano’s contributions to the liberty movement are hardly limited to his show. A former law professor and the youngest life-tenured Superior Court judge in New Jersey, he retired from the bench in 1995 to expand his role as a Fox legal analyst and writer. Napolitano is most recently the author of Dred Scott’s Revenge: A Legal History of Race and Freedom in America. In August, I had the honor of discussing with the judge this new book and his recommendations for young constitutionalists and libertarians.

Kristian: To start out, you recently published Dred Scott’s Revenge, which discusses the history of race relations in America. So I’d like to begin with that and ask you to explain the basic thesis of the book.

Napolitano: Well, Dred Scott is a metaphor for a government that thinks it’s powerful enough to suspend the free will of a class of people who are politically impotent at the time. Dred Scott’s case itself, of course, is well known throughout history as the case of a black man born into slavery in Virginia who through a series of—I know it sounds terrible, but it’s true—sales and purchases makes his way into the custody of a master who’s in the military, and who is assigned to a post in Illinois, which is a free state. And while there [Scott] sues for his freedom. Without going into the procedural history of the case, which is long and tortuous, the case is eventually tried in St. Louis, Missouri, and he loses.

So it makes its way to the Supreme Court of the United States—again this is over a 10-year period and there are numerous proceedings in trial courts and the Supreme Court of Missouri and then eventually the Supreme Court of the United States. The U.S. Supreme Court could have ruled “once a slave, always a slave” or could have ruled “once set free, forever free.” Instead it said, “We can’t hear your case, Mr. Scott, because you’re not a person under the Constitution.” So by agreeing to define away his personhood, the court put the moral and legal and constitutional stamp of approval on the most horrible and hateful practice in American history, the practice of slavery.

Now you may say, “Well, this was 1852; this wouldn’t happen again.” But it repeated itself in 1973 in Roe v. Wade, when the court again put its stamp of approval on an idea that it came up with, which is that babies in the womb are not persons and therefore can’t have legal protection and no one can sue on their behalf. This has resulted, of course, not only in abortions, but it’s resulted in at least two states—New Jersey and Kansas—which permit abortions up to the moment of birth and make it an offense to attempt to save the life of a baby that survives the abortion, and have the state pay for [the abortion].

So it shows how the concept of a government that thinks it can write any law it wants has woven its way into our present-day fabric of law. The idea that a government is strong enough to take away someone’s free will on the basis of a group to which they belong—not on the basis of something illegal or criminal that the person has done—is not unique to the United States, but it is the metaphor for this book: “What has been the law of race relations in the U.S.?” And it starts with the slave trade and it brings us up to the present day with Dred Scott as a metaphor.

Kristian: One subject which you talk about pretty extensively in Dred Scott’s Revenge is the conflict between positive law and natural law.

Napolitano: Well, natural law is the belief that our rights come from our humanity. We’re created by God in His image and likeness, and just as He is perfectly free, we are perfectly free. So freedoms for which all rational people yearn—to think as we wish, to say what we think, to publish what we say, to worship or not to worship, to travel, to have intimate relations with a person of our choosing, the right to be left alone, the right to be free from governmental restraint without the government showing some evidence of guilt on our part—these are natural rights that come from our humanity.

Positivism teaches that the law is whatever the lawgiver says it is, and that all rights come from the government. So under positivism, if the First Amendment were to be abolished then there’d be no freedom of speech. Under the natural law, if the First Amendment were abolished there would still be freedom of speech because it is a natural right that preexisted before the government. This debate between positivism and natural law did not occur in the Continental Congress, because the Declaration of Independence, which is the culmination of the Continental Congress, is a pure natural-law document. When Jefferson wrote, “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness”—key words “by their Creator” and “unalienable”—he was wedding to the American soul something that he always believed, even as a child, and well into his adulthood and until the time of his death, which is that our rights come from our humanity.

This argument—naturalism vs. positivism—has been going on for thousands of years. It rears it head 11 years later in the summer of 1787 in Philadelphia, when they’re writing the [Constitution]. John Adams and Alexander Hamilton and the big-government crowd were positivists and argued that rights come from the government. Thomas Jefferson wasn’t physically there, but James Madison, who of course was, made the natural-law argument.

There are both positivistic and natural-law components to the Constitution, but for the most part the natural-law side wins because of the agreement to put a Bill of Rights into the Constitution, because of the notion that the Constitution specifically defines federal power and then restrains the government, keeping it—as [Supreme Court Justice William O.] Douglas once said—off the people’s backs.

Most people in the government, from the time of George Washington to Barack Obama, will claim that they believe in natural rights. With the exception of Thomas Jefferson and Andrew Jackson and Grover Cleveland, they all have been positivists. They all believe that the government can do whatever it wants. The Alien and Sedition Acts, which made it a crime to disparage most of the government, were signed by John Adams, the same John Adams that was present at the Constitutional Convention and who signed the Declaration of Independence. George Washington signed the fugitive slave law, which exempted whites from state kidnapping law if they kidnapped and restrained fugitive slaves and brought them back to their owners. These guys were enacting this horrific legislation, notwithstanding that they took an oath to uphold the Constitution, which stands for natural rights. 

Kristian: One thing that I found really interesting was your discussion of the Civil Rights Act of 1964. How would you have solved the dilemma of someone like Barry Goldwater, who opposed racial discrimination but who believed that nondiscrimination laws infringed on natural property rights?

I agree with Barry Goldwater that certain nondiscrimination clauses do infringe on property rights; and for a pure libertarian, as I am, but also a pure natural-law devotee, as I am, it is a conflict. The best way out of the conflict is to argue that the civil rights laws ought to have refrained the government from enforcing segregation. That still doesn’t address the problem of Ollie’s Rib Pit. You know Ollie’s Rib Pit is a real case, in which Ollie only serves redneck whites and doesn’t want blacks in there because—I mean, he doesn’t care who he serves, but if he serves blacks the whites will stop coming. So he has a real serious issue with the use of his private property.

Now we reach a moral judgment, whereby we have to decide which is a greater right: the property right or the right to be treated fairly no matter what your skin color is. At bottom it’s always a question of governmental power. I think the Civil Rights Act of ’64 regulated too much private behavior, but to the extent that it stopped people in the government from making decisions based on race, it did the right thing.

Kristian: You talk about affirmative action in Dred Scott’s Revenge, and obviously the Supreme Court nominations have just been going on. People like Pat Buchanan have charged that Sotomayor is a product of affirmative action, which she says herself. So do you think the suggestion that she’s an objectionable candidate based on ability, letting alone politics, is a good one?

Napolitano: I don’t think she’s an objectionable candidate based on ability. I mean, in preparation for a long documentary that Fox did on her, I read many of her speeches and many of her opinions and I can tell you unquestionably that she is an activist, liberal Democrat from New York City. And that’s nothing new and it’s beyond dispute. But I can also say that her opinions are well within the mainstream of American legal thinking.

You know, you elect a liberal Democrat to the White House, you get a liberal Democrat appointed to the Supreme Court. Some of the things she said outside of the court are a little wacky, but having been a life-tenured judge and having been a law professor myself, I know that sometimes you say these things to push the envelope, to challenge students—even fellow faculty—and sometimes fellow judges to think outside the box and to respond to you. Would I have appointed her? Well, of course not. Would I have voted for her confirmation? Of course not. But is she qualified? Yes, she’s certainly qualified.

This is proof that elections have consequences. I mean, Barack Obama’s not going to put [Judge Alex] Kozinski or Janice Rogers Brown on the Supreme Court; he’s going to appoint someone that agrees with him. For that matter, George Bush wouldn’t either, because those two are libertarians. Sam Alito—Justice Alito, who was my Princeton classmate—and John Roberts, whom I know, they’re big-government Republicans, just as objectionable as a big-government Democrat. Unless a Ron Paul is in the White House, this is what we’re going to get. Though occasionally, out of the mouths of Justice Thomas or Justice Scalia, we get some wonderful fidelity to the natural law, fidelity to the free market, and fidelity to the Constitution. Not always, but frequently, and rarely from anybody other than those two.

Kristian: What kind of advice would you give to new or prospective law students?

Napolitano: I would advise them to challenge authority, which includes their professors—obviously in a civil way. I would advise them that sometimes the dissents are just as important as the majority opinions, either because they show the flaws in the legal thinking of the majority or because they eventually become the law. And I would advise them to do some outside reading in addition to what their professors have given to them because there’s a whole school of thought on the Constitution which is not taught in law school.  This is not necessarily the fault of the professors; professors have to teach what the Supreme Court has done and how we’ve gotten to where we are. For the most part that’s big government, more big government, and more big government. But there are other views to that which are articulated elsewhere.

Now, having been a professor myself, I can tell you the purpose of law school is to teach you to think like a lawyer and to teach you the basics so you can pass the bar exam. It is the rare law student that has the time to go beyond that, but if someone is interested in human freedom as a law student, one needs to go beyond what one learns in law school. One needs to read a great deal of Thomas Jefferson, one needs to read a great deal of John Locke, and then there are, you know, secondary, contemporary works which show the other side of how the Constitution ought to have been interpreted, rather than the way the Supreme Court did so.

Kristian: Are there books that you would recommend to any student who wants to learn more about the Constitution?

Napolitano: Well, I mean I don’t want to tout my own books, but I wrote one called The Constitution in Exile, which is a New York Times bestseller. Tom Woods’s Who Killed the Constitution? is a superb book on the same subject matter. Bob Levy has a great book called The Dirty Dozen, in which he takes the 12 worst Supreme Court opinions in the post-World War II era and outlines those. I mean these are things that—if law students are really interested in human liberty and how we lost it—ought to be read.

Kristian: Then the last thing I would ask is if there’s any other advice or recommendations you’d have for young constitutionalists or libertarians who are interested in learning more?

Napolitano: Stick to your guns and don’t be demoralized when we continue to lose elections and when we continue to lose votes on the floor of the Congress. Most people like us are not drawn to government, and most people—like Barry Goldwater when he was candid enough to say, “I want to shrink the government”—most people don’t run for government with that attitude.

The government attracts people who have what St. Augustine called libido dominandi, which is the lust for power. It’s just as strong a libido as any other kind of libido, and even though they’ll take an oath to uphold the Constitution, and even though they’ll say nice things about the natural law, they really just want to take more of your liberty and more of your property and give themselves more power. It can be very demoralizing. But once in every generation somebody like Ron Paul comes along. In a prior generation, we thought it was Ronald Reagan; in a prior generation, we knew it was Barry Goldwater. These people need our support—our academic support, our intellectual support, our political support, and, when appropriate, our financial support.

And nobody should be demoralized because truth and freedom always win out. Sometimes the battle takes a long time.

Bonnie Kristian [binnie.kristian@gmail.com] is the Young Americans for Liberty blogger in chief and a 2009 graduate of Bridgewater College.