It Is Dangerous to Be Right When the Government Is Wrong

i

IT IS DANGEROUS TO
BE RIGHT
WHEN THE
GOVERNMENT
IS WRONG

ii

Also by Andrew P. Napolitano

Constitutional Chaos: What Happens When Government Breaks Its Own Laws

The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land

A Nation of Sheep

Dred Scott's Revenge: A Legal History of Race and Freedom in America

Lies the Government Told You: Myth, Power, and Deception in American History

iii

IT IS DANGEROUS TO
BE RIGHT
WHEN THE
GOVERNMENT
IS WRONG

THE CASE FOR PERSONAL FREEDOM

ANDREW P. NAPOLITANO

iv

© 2011 by Andrew P. Napolitano

All rights reserved. No portion of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, scanning, or other—except for brief quotations in critical reviews or articles, without the prior written permission of the publisher.

Published in Nashville, Tennessee, by Thomas Nelson. Thomas Nelson is a registered trademark of Thomas Nelson, Inc.

Thomas Nelson, Inc., titles may be purchased in bulk for educational, business, fund-raising, or sales promotional use. For information, please e-mail [email protected].

Library of Congress Cataloging-in-Publication Data

Napolitano, Andrew P.
 It is dangerous to be right when the government is wrong : the case for personal freedom / by Andrew P. Napolitano.
    p. cm.
Includes bibliographical references and index.
   ISBN 978-1-59555-350-8 (alk. paper)
   1. Civil rights--United States. 2. Civil rights--Philosophy. 3. Liberty--Philosophy. 4. Natural law--Philosophy. I. Title.
   JC599.U5N25 2011
   323.0973--dc23
   2011019142

Printed in the United States of America

11 12 13 14 15 QGF 6 5 4 3 2 1

v

This book is dedicated to

Congressman Ron Paul,

Physician, Philosopher, Economist, Public Servant,

and Defender of the Constitution.

Through his tireless efforts,

Freedom itself

has been rekindled

in the hearts of millions of Americans.

vii

“Our rulers will best promote the improvement of the people by strictly confining themselves to their own legitimate duties—by leaving capital to find its most lucrative course, commodities their fair price, industry and intelligence their natural reward, idleness and folly their natural punishment—by maintaining peace, by defending property, by diminishing the price of law and by observing strict economy in every department of the State. Let the government do this: The people will assuredly do the rest
.”

—T
HOMAS
B
ABINGTON
M
ACAULAY

“It is dangerous to be right when the government is wrong
.”

—V
OLTAIRE

“Does the government exist to protect our freedoms, or do we exist to serve the government
?”

—A
NONYMOUS

“You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe
.”

—P
RESIDENT
J
OHN
A
DAMS

ix

Contents

Author's Note: Is Freedom a Myth or Reality?

Introduction: Where Do Our Rights Come From?

Chapter 1:
Jefferson's Masterpiece: The Declaration of Independence

Chapter 2:
Get Off My Land: The Right to Own Property

Chapter 3:
Names Will Never Hurt Me: The Freedom of Speech

Chapter 4:
I Left My Rights in San Francisco: The Freedom of Association

Chapter 5:
You Can Leave Any Time You Want: The Freedom to Travel

Chapter 6:
You Can Leave Me Alone: The Right to Privacy

Chapter 7:
Hands Off: You Own Your Body

Chapter 8:
Sticks and Stones Will Break My Bones: The Right to Self-Defense

Chapter 9:
You'll Hear from Me: The Right to Petition the Government for Redress of Grievances

Chapter 10:
War . . . War . . . What Is It Good For?: The Right to Enjoy Peace

Chapter 11:
When the Devil Turns Round on You: The Right to Fairness from the Government

Chapter 12:
A Dime Isn't Worth a Penny Anymore: The Right to Sound Money

Chapter 13:
Theft by Any Other Name: The Right to Spend Your Own Money

Chapter 14:
A Ride on Dr. Feinberg's Bus: The Right to Be Governed by Laws with Moral Limits

Chapter 15:
Ignoring Stupidity: The Right to Reject the State

Acknowledgments

Notes

Index

About the Author

xi

Author's Note
Is Freedom a Myth or Reality?

Does the government exist to serve us or to master us? If the government exists to serve us and if freedom is part of our humanity, how can the government take freedom from us? Is human freedom in America a myth, or is it reality?

In all my previous written works, I have emphasized the theme that all human beings possess natural rights as part of our humanity. In the Judeo-Christian tradition, we view these rights as gifts from our Creator. This is particularly so if you are an American, and if you mark the founding of this nation at July 4th 1776, as it was then that the Continental Congress promulgated in the Declaration of Independence Jefferson's immortal—though hardly novel—words to the effect that we humans are created equal and are endowed by our Creator with certain inalienable rights, and among these are life, liberty, and the pursuit of happiness. Historians have speculated that Jefferson originally planned to use the concept of property ownership in that iconic litany of human rights, but his fear of addressing slavery in the same document in which he had characterized the long train of abuses visited upon the colonists by the king of England, would have opened the Declaration and its signers to charges of hypocrisy.

Nevertheless, Talmudic and Christian scholars, and renowned skeptics, even atheists and deists, had long held, by Jefferson's time, that the divine right of kings was a myth, that all humans own their own bodies, and that personal freedoms are integral to those bodies. Whether the ultimate source of human freedom is found in theology or biology, freedom exists, freedom is ours by nature, and the long history of the world is really one unceasing, increasing catalogue of the epic battles for personal freedoms against tyranny.

xii

Stated differently, I have argued in my work at Fox News, as a judge, as a lawyer, as an author, lecturer, and law school professor that our basic human liberties—thought, speech, press, worship, travel, privacy, association, self-defense, bodily integrity, dominion over ownership of property, fairness from the government, and the presumption of liberty at all times under all circumstances and in all conflicts—are the essence of humanity.

If you read the Bill of Rights—the first ten amendments of the Constitution—you will see that the theme of my other works, and of this book, was pretty much accepted by the Framers. As you will read recounted here, they, like I, were skeptical of Big Government. Some, like Patrick Henry and George Mason, were, like I am, skeptical of all government. The Framers viewed, as do I, the only legitimate role of government as protecting freedom. That connotes protection from force and fraud, but it surely does not connote punishing the politically unorthodox, transferring wealth, regulating personal private behavior, stealing property, or manipulating currency. I suspect that if you actually picked up this book and have read these introductory remarks up to this point, you will generally agree with me: So far so good.

Now the dark part: There is no human liberty, natural or constitutional, expressly guaranteed in the Constitution or traditionally viewed as belonging to all persons, that has not been nullified by the government in America. We are deluding ourselves if we really think that the government thinks that the so-called guarantees of freedoms are truly guarantees. They are not. They have been tolerated by American governments unless and until the governments feel threatened by them. Of course, a guarantee that can be suspended whenever those obligated on the guarantee no longer feel bound by it, is no guarantee whatsoever.

Throughout our history, persons in America have had all natural rights denied by different levels of government, from slavery to abortion, from punishment for speech to theft of property, from denial of due process to invasions of privacy; and the government has prevailed. This book is my sixth book. All have been unhappy discussions about the Constitution and the government's unrestrained willingness to disregard it.

xiii

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.

xv

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.