Steve G.

The judge knocks another one out the park

In Libertarian on March 24, 2009 at 11:12 am

I just completed my reading of an advance copy of Judge Napolitano’s upcoming book,
Dred Scott’s Revenge, A Legal History of Race and Freedom in America
. As an individual who very much loves the study of history and considers natural law the gold standard in personal and political ideals, I found myself appreciative that the judge took a bit of time to explain the concepts of natural and positivism in law. As a libertarian, I found Dred Scott’s Revenge, a heartbreaking affirmation of what I already knew to be true: government involvement in the area of race relations- as in most areas- has been a colossal failure.

Chapter after chapter break down the obvious contradictions in our beloved constitution, Lincoln’s opportunism in politics, the Civil War and Reconstruction and the court cases and legislation that embedded racism into the fabric of the American mind. For experienced readers of history, the beginning chapters read like an interesting first year, American History college textbook. For readers inexperienced with the sometimes ugly truth of American unrevised history, Chapter 6, Abraham Lincoln and Human Freedom is bound to make them a little uncomfortable. Here though, Napolitano takes on the myth of Lincoln by allowing him to be heard in his own words. From a debate between Abraham Lincoln and Stephen A. Douglas, for example, Napolitano quoted Lincoln:

I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races- that I am not, nor ever have been, in favor of making voters or jurors of Negroes, nor of qualifying them to hold office, not to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe forever forbid the two races living together on terms of social and political equality. And in as much as they cannot so live, while they do remain together, there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. [emphasis added in manuscript]

Napolitano skewers government intervention as a leading perpetuator of racism and provides example upon example of legislative and judicial actions which cleaved the minds of American whites and blacks for so long. Again, much of this will not be new material for readers of classically liberal (or for the sake of argument, mid-twentieth century conservative) thought, but a new generation of readers- a generation that knows going to school, church or playing sports with friends of all ethnicities- will gain an clear understanding of the very real heroes, white and black, who made real progress in race relations. Indeed, for this new generation, one that has grown up learning that the government “fixed” discriminatory practices, this book will serve as an eye opener for the judge plainly discusses the politicization of race in the halls of government.

All in all, Andrew Napolitano’s fourth book fails to disappoint and at 281 pages (manuscript format including extensive bibliography), is an easy introduction to the legal history of race and discrimination in our country. Oh, and did I mention that there’s also some baseball in there? Many thanks to Jennifer Womble at Thomas Nelson for trusting this blogger enough to put it in my hands.

Also by Judge Andrew Napolitano: Constitutional Chaos: What Happens When the Government Violates Its Own Laws, The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land, and A Nation of Sheep.

  1. So the 14th Amendment, was that because of Lincoln or in spite of him? Or was it natural law finding its level in positive law? I am having a hard time understanding the distinction between respecting the constitution and being against any form of government? How does that work? And who’s nature do we trust, that which is humane and wants its government to be so also or the preacher disguised as a “news” expert declaiming his or her own “Fox News” point of view?

    There is no question that laws and lawmakers can and do make a mess out of our lives but where was Napolitano when Bush and Cheney were in office? Where does he stand on security cameras and FISMA? For that matter where was he in the anti-war protests of 2002?

    See anyone can pick and choose information to attack another person and I really don’t think he’s such a bad person just because he works for Rupert Murdoch and talks like Ellsworth Twoowey. Really. After all he does seem to like Ron Paul.

  2. I will start by saying that I’m a bit buzzed. Now, Lincoln was no saint but history says he is. You question the 14th by sort of commending Lincoln? Lincoln was a bigot in 1858 as well as ’68…he just learned his place in politics.

    Napolitano’s a judge and talking head who may not be afforded a place in history. That’s fine by me; the only historical thing he’s done is speak truth to some lies. I simply enjoyed a very well thought out book on the revised past most public schooled children are taught. But, since you bring it up, you’re absolutely correct in the idea that political leaders sometimes drop the ball with regard to government intrusions into our lives. You ask where the judge was in light of FISA oversteps when Bush was in office and you fail miserably as a troll…this particular judge called ’em all on the carpet years ago. It’s a fact you could have checked before making yourself appear not only reactive, but illiterate. (see last paragraph referencing previous titles-all available at public libraries by now.)

  3. If we are to talk about literature lets discuss The Sheep Look Up by John Brunner. Or maybe the works of William J. Lederer. Not a book that steals its title and then consists of a screed against any government while acting like a wolf in sheep clothing. You claim to be interested in history but only look at it from one point of view. So I guess you were privately educated and never ever use the public libraries, never walk on the sidewalks, never use the streets, call on the firemen, expect the police to protect and serve, honor our military slave/soldiers, or trust anyone who voted for Mr. Obama. Sounds like a sheep to me.

  4. And by the way, Lincoln was dead by 1868 thanks to another anarchist’s point of view.

  5. Actually, I am mostly privately educated and use the streets and public library quite a bit. I also pay ~ $100k yearly in federal tax alone not to mention what I pay in local taxes for my beautiful home and whatnot. IOW, don’t let the name here fool you; it’s not what you think it is. And, FWIW, my view of history comes from many points of view- a little Gibbon, Plato, Bastiat, de La Boetie, Locke, Mill, etc.

    As to Lincoln, again, no hero of mine. Sorry you’re flipped out that he was painted in a bad light by his own words.

  6. I couldn’t help but notice that Daniel J. Boorstin is not on your list of historians.

    As to the flipping out,from my perspective it seems as though you’re the one doing that when you come across a piece of information that lets you agree with the writer. I prefer to judge people by what they do as well as what they say. Quite often, especially in public office, saying and believing and then doing are at odds. Lincoln may have believed as the author quoted him but he acted quite a bit differently. The result was that after the civil war, society chose, through the Jim Crow laws, to revert to what they then held to be the “natural” law. It took the Civil Rights Act and the government action and civil disobedience and affirmative action statues to actually get us to the natural order of things where the color of a person’s skin does not stop him or her from reaching the top office. Indeed through Mr. Obama’s own persistence the fittest for the office did survive.

    The book you review may be valuable as a counter perspective but we both know the writer really is just taking advantage of the moment to televangelize.

  7. Somehow you didn’t note that most of the authors I mentioned aren’t historians at all.

    Wait for the book to come out, read it and come back to tell me anybody is using a moment to “televangelize.” I’ve seen your blog and you seem thoughtful- I’d be willing to bet that you’d eat those words after reading what Napolitano has to say on the subject. IOW, you are letting your personal biases form your thoughts on something you know nothing about- and how could you as you’ve not read the book. You’re jumping to conclusions BIG TIME.

  8. Excellent review!

  9. Dear rhbee,

    The fourteenth amendment was passed in 1868, three years after Lincoln died.

    You’re probably thinking of the thirteenth amendment, which was passed in 1865, some months after Lincoln’s death.

    It is true that Lincoln supported the thirteenth amendment, but this fact is irrelevant to the political institutions in the United States. Although Lincoln chose to sign the amendment, amendments in the United States do not need presidential signatures, and the inclusion of such signatures do not in any way make amendments any more legal.

    In addition to supporting the thirteenth amendment, Lincoln also supported the forced removal of all blacks from the United States.

    As for the thirteenth amendment, you are correct that it is the codification of natural law into statutory law. Slavery was a grave violation of natural law, regardless of what myopic views circulated in the antebellum South. Natural law dictates that all humans possess the same natural, inalienable, innate, individual, negative, human rights, and that any infringment upon these rights is in every way an usurpation, an injustice, and a crime.

    Slavery was able to exist for as long as it did because of government. In a stateless society based on libertarian property rights, slavery would not and could not exist. Any attempt to impose one’s self upon another—whether through murder, rape, theft, fraud, battery, or other forms of enslavement—would run the risk of being countered by equal and opposing force. In a society with a polycentric legal system, as anarchists advocate, anyone who engages in aggression runs the risk of being sued or, if the aggression is great enough, executed. (Not all libertarians agree on this latter point—some are quite opposed to any penalty that requires death. But no libertarian can find just opposition to the suing of criminals.) Now, of course, there will always be, in any system, some criminals that get away; I do not wish to imply that anarchism is a perfect or utopian system, only that it is far superior to any statist system.

    Slavery was able to exist precisely because the national and local states—criminal gangs in the view of radical libertarians—were employing aggression to prevent private arbitors from punishing the criminals engaging in enslavement. The statist system protected the institution of slavery in a number of ways, including the notorious Fugitive Slave Act that forced Northerners to return captured slaves to their Southern owners.

    The thirteenth amendment, therefore, was a triumph for smaller government. The radical Republicans deserve praise for this amendment, even if the rest of their programme was disgustingly statist (which it was).

    But does Mr. Lincoln deserve praise as well? You said we should judge him on his actions, rather than his words. Fair enough. Looking at the actions of Lincoln, we therefore have no alternative but to describe him as a tyrant.

    Lincoln suspended Habeas Corpus. The Constitution as originally written allowed for the suspension of Habeas Corpus, but this is prior to the adoption of the Bill of Rights. As far as I’m concerned, when the Bill of Rights was ratified, the authority of the federal state to suspend Habeas Corpus was itself suspended. (Unfortunately, the Supreme Court has yet to see it my way.)

    As if that’s not bad enough, he initiated an unnecessary war against a sovereign nation without the consent of Congress, leading to the deaths of hundreds of thousands of people. I have no shame in describing myself as being so radically opposed to war that I cannot condone the actions of Mr. Lincoln in this regard.

    He also jailed people from speaking out against the war, and prehaps worst of all, initiated a programme of military conscription. In other words, Mr. Lincoln literally enslaved thousands of men.

    Once again, the Supreme Court unfortunately does not see things my way. According to the Court, conscription does not violate the involuntary servitude clause of the thirteenth amendment—but as any regular person can tell you (especially those in the working class), it absolutely does.

    The Jim Crow laws were an obvious attempt to subvert the system of law away from nature. Under a truly free market system, black and white means nothing to businessmen, who instead think only of gold and silver. Thus, blacks and whites are treated as equals in a truly free market. Southern Democrats were upset that, because of the influence of profit, blacks and whites were intermingling. Thus, to prevent this intermingling, they enacted the Jim Crow policies.

    One final comment, in reply to your statement, “So I guess you were privately educated and never ever use the public libraries, never walk on the sidewalks, never use the streets, call on the firemen, expect the police to protect and serve, honor our military slave/soldiers, or trust anyone who voted for Mr. Obama.”

    The state, being a criminal gang that funds all of its activity through aggression, cannot legitimately be said to own anything. It doesn’t own the libraries, the streets, the schools, et caetera. Thus, these streets are unowned (save for the privately owned ones), and there is nothing unethical or naturally criminal about walking on an unowned plot of land. Moreover, under the libertarian homesteading principle, the people who use a given piece of unowned property productively become its natural and just owners. Thus, who really owns the public university I attend? The students, faculty, and staff—not the state. In accordance with natural law, we have the right to seize this “property” from the state, since the state’s ownership of it is patently illegitimate to start with.

    I don’t suspect the police will protect me. More likely, they will engage in crime against me because the state’s “laws” require them to do so. But the policing in the majority of the United States is monopolised thanks to the state’s intervention in the personal protection market. If we were to have private and competing defence agencies, they would provide far better service as far lower costs than the state monopoly police.

    Sincerely yours,
    Alex Peak

  10. So Xe is your idea of a police force for America. And we shouldn’t have fought the Civil War. And all those public services, which wouldn’t exist if the government and the people didn’t pay for them through taxes and bonds are not owned. And people didn’t own slaves, government did. Do I read you right?

  11. (1) I’ve never heard of Xe. My idea for protection services can be found in the works of various philosophers, especially Linda & Morris Tannehill.

    (2)(A) We Northerners should have seceded from the slavery-supporting U.S. There were a variety of abolitionists at the time that held this exact view.

    (2)(B) As far as the abolition of slavery goes, no other country needed to wage a war to achieve abolition; most countries just bought the freedom of the slaves. War is never the solution, and should only ever be employed as an absolute last resort as a means of self-defence.

    (2)(C) Secession is protected by the tenth amendment, and there are modern secessionist movements today, for example (1) Carol Moore (a left-libertarian who champions the idea of no nations, no nukes) runs and (2) there is a growing secessionist movement in Vermont.

    (3) You’re asking whether public services are owned. I’m not exactly sure how services, public or private, can be owned. Seems they can only be provided. Perhaps this is what you meant to say, or perhaps you didn’t intend to talk of services at all, but rather infrastructure. I’m not sure which you were aiming at.

    Assuming you’re talking of infrastructure, then I’d argue that the government does not own it, and that thus, in accordance with the homesteading principle, those who do use it are the actual and just owners.

    Say you cut down a tree in an unowned forest, and transport the wood back to your cabin. Who now owns the wood? Why, clearly you, since you mixed your labour with the wood to transform it from a tree into something productive (e.g. a chair, or firewood).

    Now if I come along and take your wood, I’m committing theft. Even if I tell you that you can use your chair every Sunday, I’ve still committed theft. And if I tell you that you have to pay me a certain amount of money every month for the maintenance of the chair, is this not compound theft?

    It doesn’t cease being theft if I tell you that I’ve taken your chair for the “public good.” It does not cease being theft if I actually provide access of the chair to said public. It does not cease being theft even if everyone on your block gets together and “elects” me to steal random chairs. Theft is theft. This chair is rightly yours.

    Now let’s say you die. To whom does the chair rightfully belong? Not to I, the thief. My act of aggression necessarily rules me out. But let’s say the chair is typically used by the children of the community. Thus, these children would become the rightful owners of the chair upon your death (assuming you have not specified in your will that you wanted the just ownership of the chair I had stolen to be transferred to someone else instead). Why would the children gain equal shares in this chair, just ownership over this chair? Because they use it.

    The state steals from all of us. It does so to such a degree that it’s virtually impossible to determine who justly owns what. Except in the cases where the state has obviously seized specific assets (usually claiming that it’s necessary for a police investigation), we must therefore rely on the homesteading principle.

    Back in the ’60s, when student protests were high, there would be the occasional event where the students of a given school would seize control over a given building. The school administration and the state, of course, looked down upon this, and the usually-leftist views of the students taking such action. But how should we look upon such acts? Since the state claims ownership of the school, some would claim that the students were engaging in acts of usurpation. But this position assumes the state can justly own that which it has itself acquired through usurpation. If the state cannot be said to justly own the infrastructure of the school (just as I cannot be said to justly own your chair), then surely the students could not have been usurping anything, at least not from the state. Who, then, are the just owners? In keeping with the same homesteading principle that said you owned the wood, we’d have to say that the just owner is whomever mixes her labour with the otherwise-unowned material to make productive use out of it. In this case, it would be the students, faculty, and staff of the university in question. In other words, the students, faculty, and staff hold legitimate ownership over the schools they themselves attend and/or work for. I’d argue that each person owns an equal share of the material. They can sell their shares if they want to, they can buy other people’s shares, but ultimately they are the just owners.

    The same thing can be said of our roads. Who owns the street you live on? Why, I’d have to say it’s you and the others who live on it. You each justly own a share, which you may sell or hold.

    Just ownership is the right to justly control a given then. Without just ownership, you can still have control (as any criminal can), but you cannot have just control. Thus, the state controls the roads, but it does not hold legitimate ownership of them.

    Roads, schools, charity programmes, et caetera would all continue to exist even without the state, although they would be run more efficiently since the people would have direct control over them, and would thus have all the incentives to ensure they run efficiently.

    (4) There are two concepts of ownership we must address: just ownership and unjust acquisition. Justly, every woman and man owns her- or himself. Thus, justly, each slave owned her- or himself. But they were controlled unjustly by their slave masters.

    At no point did I say that the state, rather than people, owned slaves. What I said is that the existence of the state allowed for the ownership of slaves because it protected the institution of slavery by protecting the unjust claims of slave-masters over the just claims of self-ownership on the part of the slaves. In other words, the state’s intervention prevented slaves from freeing themselves, as they would have been free to do had there not been the state. The government made self-emancipation illegal, and engaged in acts of aggression to ensure that self-emancipation would be rare at best.

    As far as I’m concerned, the slave-holders should have been forced to surrender their land to the slaves, since the slaves—in accordance with the homesteading principle—were the just owners of the land they were forced to work anyway. Moreover, large plantation owners would never have been able to control tracks of land as large as they did without forced labour, so this is all the more reason they had no legitimate right to that land. But did the government restore to the emancipated slaves what was rightfully theirs? No, it let the criminal slave holders maintain their land. The slaves all died without ever receiving their just reparations.

    Thus is the history of statist tyranny. It introduced slavery to this new world, forcing innocent poor people to get shipped to the new world against their will, by legal decree. It then forced them to work to pay off their “debt” for the voyage they never requested to make. It then protected the institution of slavery for centuries in this new world, forcibly preventing self-emancipation (which would not only be legal in a free society, it would be universal, as all men would be free from coercive hierarchy to begin with). Moreover, it ensured the promulgation of the slavery through allowing new states to enter the union as slave states, through various “compromises” (freedom should never be compromised!) and through forcing even free states to return run-away slaves to their masters.

    Only with the passing of the thirteenth amendment did the government legalise self-emancipation (the refusal of one to work for another), but even then, it failed to restore the land to its just owners, the former slaves that were forced to work it. Thus, the slaves were robbed yet again through statist intervention. Worse yet, when segregation immediately began to break down under market forces, the state opted to circumvent the natural market order of desegregation by passing laws that forced businesses to pay attention to skin colour rather than to profits. These Jim Crow laws lasted for another century. And the descendents of the slaves are still exploited and oppressed by the state even today. Take the war on drugs, for example; although blacks do not use drugs in higher proportion to whites, the vast majority of those imprisoned on drug charges of blacks. The state is still telling people what they can and can’t do with their own bodies.

    What I aim to abolish is any and all coercive hierarchy of one person over another. The state has classically been defined in part by it’s monopoly over a given portion of land. But is it any less disgusting when it’s one man placing a gun against the head of another and saying, “Live your life as I tell you”?

    Hopefully I have successfully answered your concerns. If not, feel free to request further clarification.

    Alex Peak

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