Home Judge’s Opinions The Presumption of Liberty

The Presumption of Liberty

by Andrew P. Napolitano
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The concept of personal liberty is that our rights come from our humanity. If you believe in a Supreme Being, as I do and as the Declaration of Independence presupposes, then you acknowledge these rights as a gift from the Creator. If you doubt or reject the existence of a Supreme Being, you can still accept the personal origin of these rights. Humans are rational beings and the essence of natural rights is the exercise of reason to seek the truth. The individual employment of unimpeded reason is the exercise of a natural right.

Either way — whether divinely created or humanly adapted — under the Natural Law, our rights come from within us. This is not a mere academic argument. Rather, it has profound everyday consequences. A right is an unconditional claim against all others that does not require validation or approval. Thus, your right to the freedom of speech enables you to think what you wish and say what you think and publish what you say. Nature — or as Thomas Jefferson said, "Nature's God" — has given you that right.

The origin of natural rights is self-evident. How is it self-evident that our rights are natural and not governmental in origin? Because we have them in the absence of government.

Thus, when government, whether by legislation or executive command, purports to interfere with your natural rights, it does moral violence to you. The framers of the Constitution — who had suffered such violence under British rule — understood this and provided for protection against government assaults upon natural rights.

That protection is called due process. This is a complex area of the law. Yet, reduced to its essence, it means that the government can only interfere with life, liberty and property after a fair trial, before a neutral judge and jury, at which the government must prove fault on the part of the person whose life or property it wants or whose liberties it seeks to curtail.

I offer this primer to address a troubling issue now facing Americans: voluntary servitude. After nine months of the COVID-19 pandemic-induced experiment in totalitarian-leaning governments, many of us still live in cities or states where — to paraphrase University of Sydney Professor John Keane — the popularly attractive exercise of arbitrary power has produced a level of comfort in popular compliance, and this comfortable compliance is voluntary servitude.

Stated differently, the government and its medical personnel have scared the daylights out of so many people that they take comfort in complying with government commands to stay home, shut their businesses and socially distance. This voluntary servitude is a pernicious evil as it encourages those in power to continue to trample natural rights. And the more those in power get away with rights trampling, the more common it will become and the more folks will accept it.

The 13th Amendment, which was enacted to abolish slavery, only prohibits involuntary servitude. Its drafters and ratifiers never imagined this voluntary version.

Among the rights most severely restricted today are those of assembly, travel and commercial intercourse. And none of these restrictions has come about via popularly enacted legislation. All have come about through unlawful and unconstitutional executive commands.

Last week, a federal judge in upstate New York became the first in the nation to order a governor to produce hard evidence to justify his closures of businesses, particularly restaurants. Lamentably, the governor's own evidence revealed that 35 times more people have been infected with COVID-19 while in their homes than by the patronage of restaurants.

I applaud this judge — he is skeptical of government commands and is moving in the direction of human freedom — but he has largely missed the point. The point is that freedom is the default position because we are born with the right to exercise it. Government can only interfere with personal freedom not by demonstrating the evidentiary basis for its commands but by proving wrongness on the part of the people whose freedom it wants to curtail.

The exercise of a natural right — so long as it does not nullify another's natural right — simply can never be wrong.

When government interferes with natural rights outside of due process, it fails its obligation to uphold the Constitution. And when governors and mayors use the power of the state to interfere with rights that are guaranteed by the U.S. Constitution, they explicitly violate federal law and expose themselves to federal prosecution.

Government is essentially the negation of liberty. What liberties may government morally negate? It may only interfere with the liberty of a person who has nullified someone else's natural rights. Suppose the rights nullifier is the government itself? When that happens, according to Jefferson in the Declaration of Independence, it is the duty of the people to alter or abolish the government.

That's where we are today, at the beginning of 2021. We live under governments that not only fail to protect personal liberties, not only fail to recognize their validity and primacy, but actively assault them. And these assaults have been accompanied by sometimes soothing and sometimes terrifying scientific-sounding language, which has induced voluntary servitude.

The danger of voluntary servitude cannot be overstated. When accepted by the masses, it will make the exercise of personal liberties the exception rather than the norm. And it will take the personal courage and public sacrifice of revolutionaries to resist it.

The only reason we have even a modicum of personal liberty today is because of determined and often unpopular men and women who refused to surrender their natural rights. Where are courage and sacrifice when we need them?

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