Mises Daily Articles
Judge Napolitano on Self-Ownership and 'National Defense'
[Excerpted from The Austrian.]
Readers of Judge Napolitano’s outstanding book will at once be struck by its unusual title. What is the “suicide pact” referred to there? The phrase occurs in a famous dissenting opinion by Justice Robert Jackson. In Terminiello v. Chicago (1949), the Supreme Court held that the city of Chicago had wrongly restricted the free speech of an incendiary speaker. The claim that doing so was needed to preserve public order did not suffice, the Court maintained. Jackson disagreed, warning that “there is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
It is precisely this thesis that Judge Napolitano takes as his principal task in this book to oppose. He strongly supports natural law. On this view, human beings have rights that the state cannot infringe.
The core concept of Natural Law is the idea of self-ownership and limitless personal liberty ... rights, specifically natural rights, are intangible and enforceable legal choices that are inalienable and exist a priori to any political or economic system, and for the exercise of which one does not need government approval.
From this bedrock point, the Judge constructs a remarkable argument. He distinguishes between rights, which cannot be given away or exchanged, and goods, which can be. Security falls into the latter class; and, as such, it cannot be traded against a right.
How can one balance a derivative against an a priori right? One cannot. In order to create a social arrangement that validly enacts laws or defines man’s relationship to other persons and their property, the underlying premise of self-ownership and natural rights both precedes and acts as precedent to the lawful acquisition of any good ... security, like that provided by the government, is a good, which cannot be freely exchanged between persons or entities, like states, without first recognizing a priori natural rights. Therefore, in considering the good of security and the right of free speech, no balancing act is possible or even conceivable.
From this standpoint, Judge Napolitano reviews security policy throughout the course of American history. Unfortunately, the natural rights approach has rarely guided American policy. To the contrary, “it has largely been ignored by every American government since George Washington. Those governments have all reflected the inevitable growth of the power of government and the shrinkage of personal freedoms.”
Why has this been so? The chief culprit has been war and the threat of war. Wars vastly increase the power of the government; and, contrary to natural law, “national security” all too often tramples liberty afoot. Napolitano aptly quotes Randolph Bourne: “War is the health of the state.” Elaborating on Bourne’s claim, Napolitano remarks: “A galvanized people [is] fearful of dissent and willing to accept suppression of their and others’ natural rights to free speech based on the seemingly xenophilic content of a viewpoint alone ... individual liberty suffers incomparably during war.”
We see this pattern from the beginning of America’s government under the Constitution. Tense relations with France fueled the Federalists’ endeavor in the Alien and Sedition Acts of 1798, contrary to the First Amendment, to suppress criticism of the government. Fortunately, these measures aroused great popular resistance, culminating in the Virginia and Kentucky Resolutions. In this connection, Napolitano says of nullification: “In large part, the doctrine of nullification follows logically from the idea of the consent of the governed. ... The states, by act of state legislature or convention, ratified the Constitution; the people did not do so as individuals. ... Nullification then seems to follow very logically.”
No history of how the government destroys rights during wartime can ignore Abraham Lincoln. All constitutional rights depend on the right to the writ of habeas corpus. Without it, the government is free to violate whatever rights it wishes. There is no recourse against arbitrary imprisonment. Lincoln, flouting the Constitution, suspended the writ. Chief Justice Taney, sitting as a circuit judge, declared the president’s actions illegal, but “Lincoln, revealing his antipathy for the Constitution, personal liberty, and the rule of law, rebuked the chief justice and refused to obey the order.” Napolitano sums up Lincoln’s views in this way: “The president ... was essentially advocating for dictator-like control of the government. Lincoln would have the Court declare the president a Caesar in times of war instead of having a federal government with checks and balances.”
In his account of Woodrow Wilson, Napolitano makes an important contribution to political theory. Concerning the oceans of misleading propaganda circulated by George Creel’s Committee on Public Information, he says:
In a social compact, the power of the government to act in any manner derives from the people’s acquiescence en masse to the ability of the government to act only as they have agreed to in the compact that it may. Parties to a contract have a duty not to misinform the other party or parties to the contract in a material manner. The people have ceded the power to make war to the government in this compact, but their representatives cannot do so under false pretenses and through falsehoods and remain faithful to the compact — that is fraud of the highest caliber. Wilson’s misinformation justifying war with Germany and social conditioning of the people represent an unconscionable violation of the social compact.
Suffice it to say that matters did not improve under Franklin Roosevelt. During World War II, Japanese Americans on the West Coast were interned in concentration camps; and the Supreme Court in the Korematsu case upheld this measure. Napolitano’s verdict is scathing: “Thus, in the face of difficult and trying times, actions that were not justifiable under necessity, but were manifestations of racism, hysteria and the ‘herd’ mentality lamented in the [Randolph] Bourne essay, were made legal and constitutional. The counter-majoritarian branch, the Court, charged with halting the majority encroachment on the civil and natural liberty of personal movement and use of property, had failed miserably in its delegated task.” Justice Frank Murphy issued a “vigorous dissent [which] would destroy his personal friendship with FDR.”
Napolitano’s aims in the book go beyond historical inquiry. He wishes to combat the gross violations of liberty which have accompanied the “war on terror”; and he devotes nearly half of the book to this endeavor. After the 9/11 attacks, “the executive branch, through the use of the noble lie and the organs of state powers, would abjure liberties in the guise of fighting a War on Terror, starting with our ostensible enemy, then moving on to personal vendetta and perpetual, aimless war.”
Napolitano justifies to the hilt this severe indictment. The NSA program of electronic eavesdropping, promulgated by George W. Bush, “was the broadest known expansion of presidential spying powers in history.” In its ceaseless efforts to gather information useful to it, the Bush administration did not shrink from torture. “Detainee treatment at Abu Ghraib [in Iraq] became public in 2004 ... causing immeasurable global damage to the credibility of the United States as a defender of natural and civil liberty. According to the initial Abu Ghraib investigator, Army Maj. Gen. Antonio M. Taguba, the prison’s MP engaged in ... ‘torture, abuse, rape and every indecency.’” Napolitano concludes that “even under the broadest reading of the Constitution, war powers do not permit the president and his military agents knowingly or even negligently to permit torture. The president and his senior officials enormously expanded war powers to effect inhumane and shameful treatment upon U.S. prisoners ... while concentrating power in the hands of a few depraved individuals who carried out this systematic regime of torture under an ideological, imperial, unitary presidency.”
Many hoped that the presidency of Barack Obama would change matters for the better; but unfortunately he continued and extended the policies of his predecessor. “The president has claimed a new and awesome power. President Obama claimed the unnatural and unconstitutional right to decide unilaterally which American shall die. ... Using his fleet of drones, Obama killed four U.S. citizens between 2011 and 2013.” So far as programs that invade privacy are concerned, Napolitano mordantly inquires: “Does a president who murders care about privacy?”
Faced with this melancholy record, we must ask, is the cause of liberty hopeless? Napolitano does not think so. “Jefferson himself predicted that in the long march of history, power and order would become concentrated in the government, and the personal liberty of individuals would be diminished. In this book, I have attempted to demonstrate not the inevitability of Jefferson’s prediction, but the need for eternal vigilance — another warning he gave us.”
Judge Napolitano has given us a comprehensive survey of the dangers to liberty we face today. He is a jurist of great distinction and provides an expert account of the legal issues in a vast number of key cases. I especially recommend his analysis of Judge Learned Hand’s reformulation of the “‘clear and present danger’ rule to adopt a balancing test for First Amendment constitutionality.” Suicide Pact is an indispensable weapon in the battle for liberty.