[UBJ3kvP1]

Daily Bell: How did the US Constitution get perverted?
Judge Napolitano: Well, I think that the problems with the Constitution began in the Lincoln administration, when he drilled people for doing what the founding fathers did, which was seceding from an overbearing central government. In the so-called Reconstruction years, which really were the years of military occupation in the South – Reconstruction is just a euphemism for that – the military directed daily life in the South for 10 years. That really whetted the federal government's appetite for more power. Now we see a recession in that power for the next 30 years and then it comes back in the Progressive Era, and the progressives are so all-encompassing that they sit even on the courts. And the courts let Teddy Roosevelt and Woodrow Wilson get away with things like, 'we are not going to let the Constitution stand in our way' for what the people need. That's utterly inconsistent with their oath to office.
Of course, the real serious troubles with the Constitution are with the FDR years. FDR has eight members on the Supreme Court and they are doing bizarre things like saying that wheat to the farmer, which grows in his backyard, which is ground into flour and made into baked goods all of which are consumed by his family, somehow constitutes interstate commerce, and people accept that with a straight face. That's, of course, the infamous, Wickard v. Filburn case in 1942. From and after that case, all bets are off and the Congress now knows that its authority to regulate even minute behavior will be held up by the court, even behavior so infinitesimal that it's not measureable by standard economic mechanisms. Because Wickard v. Filburn basically says if small infinitesimal activity ended up with other small infinitesimal activity, that's how the entire country could affect interstate commerce and the government could regulate even the small, infinitesimal parts of it. This would send Jefferson and Madison to the madhouse if they learned that the Supreme Court did this and the Congress acted upon it but as we know, that's what happened.
Daily Bell: Comment on the Supreme Court's decision regarding Obamacare, please.
Judge Napolitano: Well, I think it's one of the most tortured, twisted, unexpected, unaccepted, created opinions in modern times. Think of it this way: The court is an arbiter between the sides that are arguing before it. Either one side is right and the other side is wrong or one is partially right and the other side is partially right but the court really is without authority to come up with its own theory of a piece of litigation. So if both sides say this is not a tax, it is inconceivable that the courts on its own could say it's a tax. Rulings must come from the arguments made before it; otherwise there is no ability to rely on what the court will do if you are really just rolling the dice when you go in there.
Now, I know that sometimes bizarre compromises are necessary, to keep the five-person majority from becoming a four-person minority but this compromise – let's call this thing a tax even when its proponent denied that it was a tax – is unprecedented in our history. The Supreme Court has never declared something to be a tax that the congress did not say was a tax. Think about it, the opinions to use for the following proposition: The government can do whatever it wants, as long as the penalty for your not complying with the government's wishes is the imposition of tax, even if the behavior regulated by the government doesn't come from the Constitution. That is simply unacceptable. It is simply blatantly unconstitutional. That is simply offering the Congress on a dish unlimited federal power that even the Congress and the president didn't ask for.
Daily Bell: You are a libertarian. Are you an anarcho-capitalist?
Judge Napolitano: Well, it depends how you define those terms. I am a Randian, as in Ayn Rand, on economics. I am a Rothbardian, as in Murray Rothbard, on most philosophical principles, specifically the morality of government in our lives. Some of the younger producers who worked with me on the late, lamented, now-missed "Freedom Watch" used to say that I was an anarcho-capitalist. I don't know what the term means, but I am always the most libertarian person in the room. (Laughing)
Daily Bell: Rothbard was. How can one believe in representative democracy as an anarchist?
Judge Napolitano: Representative democracy presumes that those who receive power from the voters will respect the natural law and will respect the Constitution. We rarely have seen in our era that both the natural law and the Constitution are respected. Majority rules obviously means the rights of the minority so only a government tempered by the natural law, and in America tempered by the Constitution, has a moral one. That's why I said earlier almost all federal law is unconstitutional because it's either not grounded in a power granted to the Congress in the Constitution, or even if grounded there, violates the natural law. Beyond that we'd have to get into specifics. Under the natural law, the government only has two purposes, and those are to preserve, protect and defend our rights from fraud and force and nothing else.
Daily Bell: Is representative democracy a positive choice? Or does it always lead to despotism eventually?
Judge Napolitano: It usually leads to despotism because it usually draws to it people who suffer from labido dominandi, a Latin phrase that St. Augustine used, which is the 'lust to dominate' and the government doesn't usually draw people who think the way Ron Paul or Gary Johnson or I do. When I was in the government, in the judicial branch – we are really exceptions. The vast majority of people who are drawn there are busybodies, nanny-staters, bed-wetters and do-gooders who think that somehow they have the power to tell us how to live our lives differently than how we choose to live them.
So yes, representative democracy will lead to despotism without a judiciary seriously committed to constitutional principles and natural law principles. We do not have a judiciary today. Occasionally we hear it from Justice Thomas; sometimes we hear it from Justice Scalia; occasionally we hear it from Justice Kennedy. There is a smattering of lower court federal judges, but only these arguments are appointed by Democratic presidents. But for the most part, the Judiciary presumes to be constitutional whatever the legislative branch has done, and thus finds ways to uphold legislation.
Von Mises said that government is essentially the negation of liberty. I believe he is correct. From that it follows that whatever the government does should be presumed unconstitutional and violative of the natural law. Rather than the challenger having the burden of saying why the legislation or the government behavior is wrong, the government should have the burden of saying why the legislation or the government behavior is consistent with the Constitution and consistent with the natural law. Simply switching that presumption would radically change the ability and the inclination of the courts to invalidate much of what government does in deference to our individual choices.
Daily Bell: Is modern law made to include natural law and economics? If not, why not?
Judge Napolitano: It doesn't matter. Natural law is part of our humanity and modern law is subject to that. The creature is subject to the creator. The creators of law are human beings and we all are subject to the laws of physics, the laws of economics, the laws of nature. 'Some men say the Earth is round and some men say the Earth is flat but if it is round, let the kings command flatten it, and if it is flat by an act of parliament, make it round.' Of course, the answer to both questions is no because all governments are subject to the laws of nature as are human beings. So the government ignores the natural law but it is ultimately subject to the natural law just like we are all subject to the movement of the Earth around the Sun and to a flat Earth or a round Earth, whatever the case may be.
Daily Bell: We've argued for common law here – not British common law but real common law, pre-Babylon, common law as it existed within tribal contexts for tens of thousands of years. Can you comment on that?
Judge Napolitano: That's a very complicated observation on your part. The common law that we inherited was the common law in Great Britain in the 17th and 18th centuries, which is essentially judge-written law based upon notions of fairness and tradition in history. For the most part it embodied the natural law and for the most part it has been irradiated by positive law, by the statutes that have been enacted by Congress, for instance, and by state legislatures. You remember that TV commercial, "It's not nice to fool Mother Nature?" Whenever the government violates the natural law, there are unintended consequences to it. I believe that we were created by an omnipotent, Supreme Being. Some people call him Allah; some people call him as do I, the Father. Now, I believe he made us in his image and likeness and he doesn't have a body but we do; he's not going to die and we are. But the one thing absolutely in common between the creator and the creature is freedom. When the government takes away human freedom, it takes away that one aspect of our humanity that is closest to the creator. There are inimitably adverse consequences to such interference.
Daily Bell: Follow-up: Why does the state need to be in charge of law? Why can't people pursue justice privately?
Judge Napolitano: Because as a token of all this, government doesn't share power. It would take a government of Ron Paul's, Rand Paul's and your humble correspondent here to shrink the government radically and to repose into the hands of individuals the ability to address injustice on their own. It truly goes back to the Middle Ages when people transferred to the government the right to punish.
Think about it. If my house is broken into and they steal my favorite book, what business is that of the government? Well, the government has decided that they have the right to prosecute and punish but in a different world, I would have insured and have insurers' authority to pursue the thief, and it wouldn't cost my neighbors any money to bring about justice. But we live in a world where the right to punish exists only in the hands of the government because it was perceived as fairer and more convenient at the time it was transferred. It's not fairer or more convenient today; it's politically subjective today. The greatest lawbreaker is the government itself so how could we possibly rely on the government to give us justice?
Daily Bell: What is justice?
Judge Napolitano: Depending on each individual, justice is different in different cases. Justice is certainly not the government taking property from us against our will. I mean justice is a series of voluntary transactions which, when interfered with, are made whole again on the basis of fairness and principles of morality. I can give you thousands of examples of injustice; most prosecutions are unjust because they tax the general populace for what is essentially a private dispute.
Daily Bell: Wouldn't private justice with its duels and vendettas be far preferable to public justice that in the US has incarcerated up to six million or more people, many of them unfairly, for long prisons sentences that doom families to separation and poverty?
Judge Napolitano: I don't want to get into duels and vendettas but if you are at home one night and you hear a knock on the door, and you answer the door and a guy standing there points a gun at you, and says give me your money, I want to give it away in your name, and you think the guy's crazy and you call the police, and you find out he is the police, come to collect your taxes ... if you don't pay them they come with a gun. What do they do with the money? They give it away.
This is basically the system we have today and it is the system that we accept because we have come to the perverse belief in government, which can't deliver the mail, which can't run the school system, can't manage roads without potholes in them but somehow it can keep us safe and keep us prosperous. It can't. It is the perverse reliance upon government's delivered goods and services that has proven for hundreds of years, or at least 120 years, that it cannot deliver. The continued refusal to examine the proper role of government in our society that has brought us to where we are today and to the point where we can see change in people's thinking, for the government to be shrunk