by Anthony Wile
The Daily Bell

Recently
by Anthony Wile: Doug
Casey on the ‘Worsening Storm,’ QE3 and the Hard Assets Alliance

Introduction:
Judge Andrew P. Napolitano joined the FOX News Channel
(FNC) in January 1998 and serves as its senior judicial analyst.
Judge Napolitano is the youngest life-tenured Superior Court judge
in the history of the state of New Jersey. While on the bench from
1987 to 1995, Judge Napolitano presided over more than 150 jury
trials and sat in all parts of the Superior Court – criminal,
civil, equity and family. He has handled thousands of sentencings,
motions, hearings and divorces. For 11 years, he served as an adjunct
professor of constitutional law at Seton Hall Law School, where
he provided instruction in constitutional law and jurisprudence.
Judge Napolitano returned to private law practice in 1995 and began
television broadcasting in the same year. Judge Napolitano’s many
books include: It
is Dangerous to be Right When the Government is Wrong: The Case
for Personal Freedom (2011), Constitutional
Chaos: What Happens When the Government Breaks Its Own Laws
(2006), A
Nation of Sheep (2007) and NY Times bestsellers The
Constitution in Exile: How the Federal Government Has Seized Power
by Rewriting the Supreme Law of the Land (2007) and Lies
the Government Told You: Myth, Power and Deception in American History
(2010).

Daily Bell:
Let’s get started. What about the Rand Paul controversy? Where do
you stand on his endorsement of Romney?

Judge Napolitano:
Rand Paul is a friend of mine but yes, that endorsement certainly
got him slaughtered on his Facebook page; they were running 50:1
against him. My whole view – and I’ve said this on air –
Mitt Romney’s views are closer to Barack Obama’s than they are to
Thomas Jefferson’s and he presents just a slightly different version
of big government. In fact, in the defense policy he might actually
be worse than the President because he seems to be itching to start
a war with Iran. In terms of domestic policy, he contemplates additional
borrowing, maybe a little less than the President has borrowed.
If the President is re-elected he might bring us to $20 trillion
in debt by 2016; Romney might bring us to $18 trillion in debt by
2016. Either of those federal debts would be unsustainable.

Daily Bell:
Give us a quick summation and your thoughts on the election this
year.

Judge Napolitano:
I have harshly criticized Paul Ryan for having voted to offer the
president to raise the debt ceiling; I have also criticized him
for his support of the Patriot Act and its extensions and the National
Defense Authorization Act. He is a classic George Bush Republican
who does not believe that the Constitution means what it says. I
was heartened to hear him quote me the other day when he said ‘our
rights come from our humanity,’ which is a gift from God, and they
don’t come from the government. But unfortunately, he lied by his
vote to take our rights in the legislation that I have just articulated.

On the other
hand, I don’t think his designation by Governor Romney has succeeded
in getting capital and getting the Governor’s taxes off the front
page, and has zeroed the media focus on what should be an essential
aspect of this election. That is who would be a better steward of
the economy. I say steward because they both want to be steward
of the economy. To me, the steward of the economy should be the
people who participate in it and not the government. It should be
the free choices of entrepreneurs and consumers; they shouldn’t
need the hand of the government.

Having said
that, I disagree with the fundamental premise of both of their campaigns.
Now, the President believes that government is there for people
who can’t do what they should do for themselves. Governor Romney
wants to make government more efficient. I don’t want to make it
more efficient; I want most of it to go away. I’m sure I would be
a challenger of much of what a President Romney would do –
and I know that I sometimes get in trouble when I use the Romney/Jefferson
comparison but I don’t think that’s an opinion; I think it’s a truism.
His views are much closer to Obama than they are to Jefferson.

Daily Bell:
Not much difference between the two of them would you say?

Judge Napolitano:
Well, no, but that’s the society we’ve created. We really don’t
have two political parties anymore. We have one big government party,
with a democratic wing that likes war and taxes and individual welfare
and staying in power, and a republican wing that likes war and deficits
and corporate welfare and staying in power. There is very little
difference between them. I mean, Ron Paul and Gary Johnson are so
different from the mainstream Republicans and the mainstream Democrats;
they really present the only alternative. It’s basically a choice
between Tweedle Dee and Tweedle Dum.

I understand
the animosity towards the president, I understand the fear he instills
in those who embrace traditional values, I understand the anybody-but-Obama.
I understand the argument of those who say at least Mitt Romney
is a step in the right direction. My own view is that those who
are afraid of big government under President Obama will be equally
as afraid of it under a President Romney.

Daily Bell:
We saw he ran a rare press conference disputing the accusations
that he is running an unfair and negative election campaign.

Judge Napolitano:
Well, this is a very negative campaign. The President cannot run
on his record. His record on the economy is reprehensible and he
is, of all occupants of the White House, the most dangerous to human
freedom since Abraham Lincoln. He doesn’t want to touch either of
those subjects so his only approach is to attempt to destroy Governor
Romney.

Daily Bell:
What’s your take on Ron Paul? Give us a summation of his career.

Judge Napolitano:
I think he probably continues to go around the country, keeping
the dialogue going of small government and maximum individual liberty.
I think he probably passes the mantel to his son, Senator Paul.
Senator Paul and Governor Johnson probably battle it out and if
they can’t come to some kind of agreement as to who will personify
human freedom and who, in public life, will be the champion of it.
I think that’s probably a good thing because I think the movement
will continue to grow.

With Congressman
Paul free from congressional duties he might actually stir up the
pot even more then he’s done already. My next book, which comes
out after election day, is an assault on the progressive era, dedicated
to Ron Paul in large measure because no person in these times has
done more to remind people about the loss of liberty than he. He
has been an inspiration to millions and among those millions is
me.

Daily Bell:
Are you a backer of Rand’s generally?

Judge Napolitano:
Look, I understand why he endorsed Governor Romney. Of course, I
would never do it but I understand why he did it because he has
to live in the Republican Party and has to have peace with the Republican
establishment in the United States Senate. I am sure it was done
with the consent of his father. I understand it did not go over
well with rank and file and I know that because it didn’t go over
well with me. Once this election is over, whether Governor Romney
wins or the President is re-elected, I think Rand Paul will be his
usual self and that usual self is one of the very few members of
the Congress who believes that the Constitution means what is says.

Daily Bell:
You were negative about the freedom trend in the US last time we
spoke. Are you more hopeful now?

Judge Napolitano:
No, not at all. No. The government keeps getting larger and more
in our faces. There is less outrage than there used to be. The Air
Force predicts that in ten years there’ll be 30,000 drones in the
sky at any given moment and that some of them will be the size of
golf balls and some will be the size of mosquitoes, and nobody is
complaining about that. People seem willing to give up their privacy
in exchange for safety. People forget they need protection from
the government.

People are
confusing freedom and safety. Freedom does not promote safety; freedom
promotes unfettered choices, free from government interference.
It accepts the fact that there will be some dangerous things in
society but it assumes that risk from danger without is a more desirable
state of affairs than an authoritarian government than within. I
think these are bad days for freedom and unless a Ron Paul, Rand
Paul or Gary Johnson is in the White House they will continue to
get bad. I just couldn’t imagine a President Romney dismantling
the security state, not enforcing the Patriot Act, disregarding
the National Defense Authorization Act, stopping all the drones.
I just couldn’t imagine that happening. Until that happens, we’re
at the tender mercies of whatever faceless bureaucrats are running
the government.

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 principals, 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 principals and natural law principals. 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 are 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 principals 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.

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 duel
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 principals.
One of the first principals of the common law and the natural law
was the principal 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
principal. 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
principals. 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 principals.

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 principals.

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.

Reprinted
with permission from The
Daily Bell.

September
10, 2012

Anthony
Wile is an author, columnist, media commentator and entrepreneur
focused on developing projects that promote the general advancement
of free-market thinking concepts. He is the chief editor of the
popular free-market oriented news site, TheDailyBell.com.
Mr. Wile is the Executive Director of The Foundation for the Advancement
of Free-Market Thinking – a non-profit Liechtenstein-based foundation.
His most popular book, High
Alert, is now in its third edition and available in several
languages. Other notable books written by Mr. Wile include The
Liberation of Flockhead (2002) and The Value of Gold (2002).

Copyright
© 2012 The
Daily Bell

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