The Tyranny of the State

William Anderson writes about Judge Andrew Napolitano and his book "A Nation of Sheep":

After his introduction, in which Napolitano clearly lays out his thesis, he then explains the natural rights origin of freedom, and how many of the founders of the United States held to a natural rights position. Law, in their view, existed to protect individual liberties from those who would deny them. Today, the deniers of liberty are those legally entrusted to protect it.

Napolitano quotes Benjamin Franklin, who certainly knew something about a natural rights origin of law: "Those who give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." The judge explains that people who are willing to give up liberty are giving power to a government that will take away the rest of their liberties, and make the people even more unsafe, as a predatory government never brings safety.

In his first chapter, Napolitano takes issue with legal positivists, who seem to dot the political landscape these days. I remember speaking to a True Believing socialist who held a high place in President Jimmy Carter’s government, as he told me, "The Constitution is whatever the Supreme Court says it is."

Certainly, it seems that legal positivism holds sway. From the writings of Judge Richard Posner to the Federalist Society to the New York Times to the leaders of both major political parties (or the "Republicrats or Democans"), the idea of natural rights and natural liberty seem not only passé, but also downright subversive to Good Government. Even though politicians will make passing remarks about individual rights and Constitutional government, nonetheless they govern as legal positivists who do what they want whenever they have enough weapons to back up their positions.

Read the rest of it here.