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Daily Bell: What is the rationale for modern jurisprudence as applied by the modern state?
Judge Napolitano: The rationale is the assumption by a majority of persons that the state can more efficiently, and more justly, administer justice than individuals can. This, of course, has resulted in vast discretion being reposed into the hands of the state agents, police and prosecutors, whose charge is to prosecute. It has actually been argued that the decision to prosecute is among the most powerful in the government because it is essentially unreviewable. Of course, the decision to prosecute also denotes the decision not to prosecute; this, of course, enables prosecutors to violate the rule of law; that is to let some people off the hook while choosing to prosecute others for the same crime, thus making decisions on a political basis rather than on the basis of justice. The prosecutor essentially becomes the avenging angel for the victim and all the weight, all of the might and all of the state then comes down on the prosecutor's target for the charge for which the prosecutor has indicted the target. Almost always they charge greater than what the evidence will have seen so that when the negotiation process begins to settle the issue amicably, by what is commonly called a plea bargain, the prosecutors starts from a position of strength and the defendant starts from a position of weakness.
Daily Bell: Our idea of common law is the patchwork of law and courts that sprang up in Europe and especially in Britain and Ireland. These courts had different standards for justice and different ways of arriving at a verdict. We see nothing inconsistent about this, as we believe that most justice is "rough" (one way or another) and that cases are unique. In fact, the idea of competitive, marketplace justice is, of course, most controversial. (Any kind of marketplace competition is a bit controversial these days.) What about the positives of rough justice? Must justice always be fair and homogenous? Is it in practice?
Judge Napolitano: It is not always fair but it strives to be fair. The government almost always wins because it can carefully pick its targets. I mean, there are federal prosecutors in the country that have conviction rates in the upper 90 percent area simply because they know what targets to pick and what charges to file. But the roughness about the justice, about what you ask, has had an interesting transition. In the earliest days of common law, now 500 or 600 hundred years ago in England and Ireland, a jury was chosen because the jury knew the defendant and the victim. This was basically your friends and neighbors judging you. The theory of the common law was that the collective wisdom of 12 people who know the defendant and know or knew the victim are likely to result is rough, proximate but genuine justice.
Today, of course, we want the opposite. We want a jury of strangers that does not know the defendant and does not know or did not know the victim, and has no interest in the outcome and has no preconceived notion. So we really have switched 180 degrees on where the jurors come from and what type of preconceived notions we expect them to have. Now, do these cases usually result in justice? In my experience as a trial judge, and I tried about 150 jury trials in the eight years that I was on the bench, I think the result was almost always just or close to just. Sometimes the defendant could or should have been convicted of a crime one degree lower or sometimes one degree higher and in civil cases, sometimes the plaintiff got a little bit more than he or she deserved or not quite what he or she deserved but for the most part the collective wisdom, is usually correct.
That's why the decision to prosecute is so important and presumptions in the law are so important. The law presumes that what the government does is correct and even though the government has to prove its case beyond a reasonable doubt and to a moral certainty, it has all these presumptions going in its favor. They are sort of "hidden" in the law and they affect the language used by the judge in the courtroom, the procedures engaged in by the government, the advantages that the government has that it goes first and goes last, and it has virtually an unlimited budget in criminal cases. These are all things that a libertarian should know about and should want to examine, lest he or she come in the government's crosshairs for a reason other than his or her criminal activity.
Daily Bell: The old common law courts were subject to private compensation, sometimes the compensation of a third party, as in Ireland. We believe that private payments might guarantee a better outcome than the current statist paradigm. What the West subscribes to today is a system in which the same entity (the state and its appurtenances) makes the law, enforces the law, renders the verdict and prescribes the sentence. To us this process is fraught with conflicts of interest. The person (the judge) who is rendering the verdict is on the same payroll as the prosecutor. What's your take?
Judge Napolitano: Well, it requires a tremendous amount of courage and restraint and even fearlessness to resist the state when you are on the same payroll. One of the duties of the Constitution is the maintenance of dual systems of justice, state and federal. This frequently is a reason for challenging a state law in a federal court, rather than in a state court where the judge is popularly elected or subject to reconfirmation by the same officials whose law he or she is now being asked to invalidate.
In some states, like my own, New Jersey, after a period of time your tenure on the bench becomes life tenure and then, of course, you are utterly liberated to do the right thing. But in the probationary period, before you receive life tenure, there is in the back of your mind the awareness that you need to have your next appointment approved by the same people – or by the same mentality, let me say – who are enhancing the constitutional side of the law that you believe is unjust. Or you need to go before voters, who would never understand the niceties of constitutional jurisprudence and the fact that the rule of law protects the individual against the state – even if everybody else in society wants the individual to go, the individual still has certain rights.
So to tie a bow on your question, there is obviously an inclination on the part of state judges whose peril and tenure on the bench depends upon approval by the apparatus of the state to want to please the state. It is a rare state judge who has the courage to say to the state, "No. You are wrong because the constitution doesn't permit it." It is far easier to do in the federal system, and it's easier to do in the states that grant life tenure but only three states, New Jersey among them, do that.
Daily Bell: In free-market common law, the aggrieved party and putative offender might both pay a judge to render a verdict. The judge, who does this for a living, would have every incentive to present a fair verdict because such verdicts would add luster to his or her reputation and generate additional business. Additionally, common law has the added advantage that not everyone would make use of the system because some would seek to settle grievances on their own. This would result in a very polite society (and has in the past) as no one would want to offend anyone else. Once upon a time, "manners" were far more elaborate and prevalent for a reason. Can you comment, please?
Judge Napolitano: I would strongly prefer a system like that because it removes the heavy hand of the state from the resolution of disputes in which the state really has no legitimate interest. The state has no interest in providing a forum. This, of course, would require that laws be changed so as to provide insurance coverage for various events or calamities for which the state does have insurance companies to offer coverage or policies today.
Think about it. If you steal my chicken or I steal your cow, this is a dispute between us; what does the government care about it? The answer should be it doesn't care at all but because the state loves power and the state does not like to share power, it likes to resolve all disputes the way it wants to resolve them. This drives up the cost and diminishes justice because it forces the disputants to follow the state's rule and the state's command and the state's way, and this does not inure to politeness, civility or even the idea that a dispute could possibly be resolved amicably and justly, without the state being involved.
The state is not an instrument of justice; it's an instrument of power. It holds itself out as an instrument of justice, and many of my former colleagues on the bench still believe it is an instrument of justice and jurors believe it's an instrument of justice and trial courts believe they are instruments of justice, but basically they are wrong; they are instruments of power – the state's power, the way the state wants it exercised.
Daily Bell: There is also an issue of honor and morality. In communal societies, where power has devolved to local levels, religion can often play an important role in how society is organized and how law is administered. Such societies are often shame-based, or have been in the past, and the prospect of shaming may act as a behavior modifier (as it does today but only vestigially). The combination of religiously oriented communal societies with local laws and customs, a common law heritage and the practice of dueling and so-called "vigilante justice" certainly poses an alternative to the current system of Western justice. Is this a realistic appraisal of past justice regimes or merely pie-in-the-sky?
Judge Napolitano: I think it's a realistic appraisal of past regimes. I don't know that it could happen here in the US tomorrow or in the lifetime of anybody reading this but it really was based on the first principles. One of the first principles of the common law and the natural law was the principle of subsidiarity. Why? Subsidiarity teaches that the least amount of government to resolve an issue is best so all governmental concerns should be resolved by the smallest amount of power, in the smallest unit of government, exercising the least power and the fewest resources possible. So it is far better for a dispute to be resolved by your neighbors than by Washington, DC.
Now, we don't practice subsidiarity in the United States even though it is a first principle. Jefferson and Madison understood it. The Constitution was written subject to it and is a part of the natural law. The Catholic Church and most of Christianity teaches it and it is rarely practiced today. It is almost Jefferson's "That government is best that governs least," so that would be the American version of subsidiarity. But when it was practiced, the concepts and experiences articulated in your question were real and did happen and induced compliance with accepted standards behavior without the heavy hand of the state being involved.
Daily Bell: Some other potential criticisms of modern law... Is modern Western jurisprudence actually admiralty law?
Judge Napolitano: Admiralty law is a branch of common law that governed the behavior of sailors aboard ship so it was a separate version of the common law because in the year in which it became accepted in British courts, sailors had been aboard ships for many, many months. So events that occurred there, disputes between sailors and disputes between the command structure, needed to be resolved while they were on ship rather than waiting until they could return to port.
Or if it was a grievance matter then the law would permit the restraint of the person charged aboard ship until return to port. They were different. It was high seas and there was not country. In the early days there wasn't even a statutory law so basically at trials judges did what they thought was fair and jurors did what they thought was fair, and from that grew a body of law called admiralty law. Today, admiralty law is essentially federal law written by the Congress governing the behavior of military and the civilians aboard ship outside the territorial areas outside the United States.
Daily Bell: Do US lawyers serve a British system or are they independent?
Judge Napolitano: The British system is loser pays. We do not have loser pays system in the United States. We have the beginnings of loser pays, by what is known as Rule 11 in the federal system. Rule 11 in the federal system permits the winner to have his or her legal fees paid by the loser when the loser argument is utterly frivolous. Now, that's a long way from loser pays but it is also a giant step in that direction.
The amount of civil litigation in Great Britain per capita is far, far less than what we have here in the US because of loser pays. You sue, you win, you go home happily. You sue, you lose, you not only have your own legal bills but you also have the legal bills of the entity that you sued. We don't have that here and there are certain exceptions to it, probably not appropriate to go through now, but we don't have it here.
The argument against it is we would not have had the expansion of human liberty here if loser pays were the law because lawyers would be afraid to challenge the government. It's like saying Brown v. Board of Education, which is essentially a challenge, a challenges that reached these decisions by pertinence. So the argument is if we had loser pays the lawyers would be afraid to bring that challenge for fear that they would have lost. The flip side of that is we live in a society that is terribly expensive in large measure because of explosion of litigation, which would not exist if we had losers pays. I do not think that loser pays is coming but I do see some small steps in the direction of it.
Daily Bell: Is the US a secret corporation?
Judge Napolitano: No. I try to understand that argument and I reject that argument. I don't reject the people who make the argument because they are simply challenging the ability of the federal government to write any laws whatsoever other than those specifically articulated in the Constitution. That's a view that I share, about the ability of the federal government and its limitations. But the argument that the United States is a secret corporation is one I've never understood and do not embrace.
Daily Bell: Did America ever go bankrupt? Is the country in legal receivership?
Judge Napolitano: Well, the country has defaulted many times – when it seized gold, when it seized silver, when it didn't pay its debt – so yes, you could argue that the United States is bankrupt. Our governance is in debt by 16 trillion dollars and Obama has borrowed about 1 trillion a year in his four years in office. If he gets re-elected and does the same thing, in 2016 we'll have a debt of 20 trillion dollars. That would generate about a trillion dollars a year in interest payments. That's about 40 percent of the revenue collected by the federal government from its various sources and it cannot sustain itself when 40 cents on every dollar goes to debt service. It also cannot sustain itself if it printed cash in order to pay those debts because then inflation would be crazy. We are in serious danger of defaulting, and the only solution to this, in my view, is a return to the gold standard, competing dollars and this requires an enormous change in mindset of people in Washington.
Daily Bell: Is America currently under a state of emergency and legally led only by the president?
Judge Napolitano: I think we are a police state. I think we are a national security state. I think the government pays lip service to the Constitution and basically does whatever it wants to do. When the Congress let the President decide that he can kill people on his own and he can start wars on his own – he once threatened to borrow money on his own – when the Congress permits that to happen, this is close to being a dictator. For the most part, Congress is a potted plant while the president, whether it's George W. Bush or Barack Obama, is allowed to do virtually whatever he can get away with. Frequently, the courts are reluctant to restrain him. It's a deplorable state of affairs in which we are on the precipice of a cliff. The true TV commercial should not be granny going over the cliff; it's all of us going over the cliff with the federal government pushing the wheel chair behind us.
Daily Bell: Why did we move from private law to "public" socialized law?
Judge Napolitano: Oh, my goodness, because people were bought off by the federal government. Why did FDR and LBJ create their massive establishments in order to create entitlements and in order to create dependence on the Democratic Party? People accepted the giveaways in return for the loss of freedom. Jefferson and Hamilton rarely agreed on anything but one thing they did agree on is when the public treasury becomes a public trough and the public learns this, it will send to the government people who will bring home the larger piece of the pie. That has happened, beginning in the Progressive Era and heightened in the FDR years, and heightened yet again when Republicans fell in line. They previously resisted the entitlement state; now they fall in line with it. That has produced a country in which half of the population receives a salary or material goods from the government, paid for by the other half. That also cannot survive in the context of freedom for very long.
Daily Bell: Why should the Supreme Court be the last word on justice? Why should people live under interpretations of the law made by strangers with their own agendas?
Judge Napolitano: Sometimes the Supreme Court justices do the right thing, and somebody has to have the final say. In my own view, the Constitution contemplates that states can reject oppressive federal laws and that state governments, either state legislature or the highest court in the state, has the power to invalidate a federal law in the state. We haven't had that for 220 years but that was clearly contemplated by the founders. That would remove the monopoly on the final word from the Supreme Court. There's an old phrase that the Supreme Court is infallible because it's final; it's not final because it's infallible. So removing its finality or sharing its finality with other courts would remove its aura of infallibility.
Daily Bell: Do you respect all of the Supreme Court justices?
Judge Napolitano: Do you mean the human beings on the Court or their decisions? I know some of them very well. I disagree with some of them. I think some of them are agenda driven. Rarely do you see a return to first principles. Stated differently, I would be in the dissent in most of the major decisions in our era because, in my view, it would be inappropriate for the Court to be ruling on this, or the behavior of the government that the Court is violative of the natural law or the constitutional law. A broad sweeping statement and to be fair I would have to examine each case and this is generally where I come down on this because, to me, the individual is greater than the state and the natural law is superior to all other law. Very few Supreme Court justices in the modern era have accepted either of those first principles.
Daily Bell: Do you believe that all of them abide by the laws of the land?
Judge Napolitano: I don't want to start a hypothetical dispute but I would say that few of them remain true to first principles.
Daily Bell: Are any of them ideologues?
Judge Napolitano: Yes.
Daily Bell: Do you have any final thoughts? Anything you want to say to readers that we didn't ask about?
Judge Napolitano: I thoroughly enjoy these interviews. I love your audience. I love your product but we live in very bad and gloomy and dangerous times for freedom. Freedom is more threatened today, in my view, than at any time since Lincoln was in the White House. We are on the precipice of losing freedom. Freedom lies in our hearts but it must do more than lie there. We must exercise freedom and make it difficult for the government to take it away from us.
Daily Bell: Thanks for your time once again.
Judge Napolitano: Thank you.