30 Jul
2010
Posted in: In English
By Mikołaj Barczentewicz    5 Comments

Judge Napolitano on which one is more important: freedom or the Constitution

Today, I’ve had a great opportunity to ask Judge Andrew Napolitano a question that hounds me for some time now. Last week, on LewRockwell.com I tried to give an answer to the problem of the relationship between libertarianism and originalism in constitutional interpretation. My conclusion was that because originalism renders libertarian results most of the time, libertarians should endorse it. Still, the Constitution is not a libertarian manifesto, and it might happen that following it’s original public meaning would conflict with the principle of freedom. The question then is a normative one: what should a judge do in such a situation?

And that’s what I’ve asked Judge Napolitano about:

Myself:
Judge, when the principle of freedom and the Constitution conflict, which one should be paramount to US Justices who swore to uphold the Constitution? What’s more important: freedom or the Constitution?

Judge Andrew Napolitano:
Almost everybody who is a judge in the country today would probably answer: the Constitution. But I would argue that the Constitution embodies the natural law, and it is the duty of judges to uphold the natural law, no matter what the majority says. The whole purpose of the independent judiciary is to be the anti-democratic branch of government.

It would seem, that Judge really is an anarchist after all.

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5 Comments

  • max johnson III 30/07/2010 at 04:21

    the judge’s answer leaves much to be desired. the judges states, “it is the duty of judges to uphold the natural law, no matter what the majority says.” where does such a duty arise from? if there is no “legitimate” source for this “duty,” it seems as though judge nap is simply a deceptive jurist intent on masking his personal preferences behind such concoctions as the aforementioned “duty.” What’s to stop some other jurist intent on grossly extending government power from arguing that he has a duty to extend government power? i also highly doubt he is an anarchist (if he is, I doubt it is a genuine sentiment. He is Catholic and pro-life and thus must be dissatisfied by the government’s handling of abortion issues. Given this context, it makes sense for him to undermine government when government policy is antithetical to his Catholic views.)

    your question is a bit odd as well. judges take an oath to uphold the constitution, not freedom. if freedom is actually more important than the constitution, then the aforementioned oath is…a lie?

    Furthermore, it is absurdly naive (I believe you are aware of this, but it deserves mentioning) to think that the U.S. Constitution has in no way influenced your, my, and his understanding of “freedom.” To place the Constitution on one hand and freedom on the other and ask which deserves prominence is to ignore the critical nexus that binds them and the influence that the interplay between these two subjects has and continues to have on American political thought.

    his sentiments on the role and objective of an independent judiciary are also shocking and naive. in any case, his statements lack any internal logic. first he states that judges must uphold this duty regardless of what the majority believes, but then states that judges must actively act as antimajoritarian/antidemocratic agents. what if the majority actually supports natural law reasoning? should the judge then violate the aforementioned “duty” and decide cases in an anti-natural law manner in order to satisfy the antidemocratic/majoritarian criteria?

    interestingly, according to Wikipedia (I am aware of the deficiency of this source, but the following stands regardless) the judge is a “pro-life Catholic libertarian.” I dare to make the apparently logical step of assuming that the judge, if still sitting on the bench and presented with an abortion related case, would decide that the woman does not have the freedom to abort the fetus. now my question for you. what does “natural law” (which is, to me at least, a deceptive abstraction the judge uses to endorse views he cannot otherwise support) say about how such a case is to be decided? i ask, because if “natural law” states (I am playing along for the moment) that the woman has the freedom to abort the fetus, then judge nap’s hypothetical decision would in fact be a violation of the principles he endorsed in the reply to your question. accordingly, neither freedom nor the constitution are paramount; unsurprisingly, the judge’s personal views would be paramount.

    Apologies for the extensive writing.

    Regards,

    MJIII

    Reply
  • Mikołaj Barczentewicz 30/07/2010 at 06:42

    Thanks for the comment.

    Judge Napolitano has referred (http://mises.org/media/5247) to two separate justifications for the principle of freedom – secular and religious. I have to say, that I’m not entirely convinced by neither one, and I share your distrust to the concept of natural law, because it is a likely vehicle to smuggle moral subjectivism through the back door. As Ronald Dworkin once said, we should beware of rules that work properly only when good people (“our people”) execute them.

    You should listen to this lecture – Judge asked about the issue somewhat indirectly hinted that he is in principle an anarchist.

    The oath is not necessarily a lie, judges may still be bound by it although not in an absolute sense, but I would argue that it does not make one a slave to the state and does not relieve one from more fundamental moral duties. You cannot alienate your moral agency through simple oath.

    I used the word “freedom” as a shorthand, what I meant (and that’s how I believe Judge understood my question) is pre-constitutional understanding of natural rights of liberty and several property (see Randy Barnett, “The Structure of Liberty”).

    Reply
  • Oktawian 01/08/2010 at 01:39

    This is rather very important question and I love the approch of the anglo-saxon judiciary. Unfortunatly, Polish court wil answer than term ‘freedom’ is an abstract notion and us such appears only in preamble. So, the Constitution itself is more important.

    Reply
  • max johnson III 01/08/2010 at 05:47

    Interesting thoughts my dear friend. “[B]ut I would argue that it does not make one a slave to the state and does not relieve one from more fundamental moral duties. You cannot alienate your moral agency through simple oath.” What precisely are you referring to when you mention such things as “fundamental moral duties” and “moral agency”? I don’t mean to be dismissive, but is not this the “smuggling” that Dworkin warned us about? Ideally (or hypothetically), a Constitution would explicitly and unquestionably lay down what duties justices are expected to uphold and how these duties are to be managed and prioritized; unfortunately, the limitations of language prohibit the establishment of such precise duties. Constitutions are intended to be the highest law of the land, but the incapacity and utter contradictory and rather muddy nature of most Constitutions (ie, the politicking, bargaining, and sheer absurdness of the U.S.’s constitutional convention that gives force to many arguments that allege the Constitution is an illegitimate document) only serve to complicate your very important question. These documents concern matters pertaining not only to freedom, but also justice and equality; these terms, in turn, have meanings that morph over time. (Side note: you shorthand freedom to that particular understanding of freedom, but what’s to stop someone from arguing that your definition of freedom [a Lockean vision if I am not incorrect] is disgustingly naive and arose during a time of severe racism, paternalism, and chauvinism and that by engaging in discourse with that particular understanding of freedom you are in fact attempting to further the forces that underpinned the hierarchies that were present during that time. If I am not incorrect, it was JS Mill also advocated this understanding of liberty but famously stated that not all the people of the world are capable of/worthy of exercising/holding such freedom. You may argue that you are disassociating that particular understanding of freedom from its context, but then you have deceptively created an abstraction from a prior reality simply because you find that abstraction pleasant and appropriate to our currently reality (and I must question to what extent you can successfully disassociate that abstraction from its context and not in turn serve to reestablish that context and the social forces extant during that time). In any case, if you are disassociating it from its context (many of the people who developed natural law thinking were fine with slavery and colonialism I believe, which must unmistakably clash with you anti-paternalist views) what’s to stop someone from doing the same and arguing that freedom involves group rights, more robust economic and social rights that extend beyond just property, etc? The Lockean/pre Constitution vision of freedom (I expect you will agree) was an idea that arose from a combination of social forces; it was a product of the past and thoughts/visions/desires of writers who were connected with that past and intended to maintain parts of that past and transform other parts. You must agree that social conditions have changed; so why maintain that particular understanding of freedom? Indeed, is it not an artifact that you cling to? And on the more discursive level, by adamantly maintaining this stagnant understanding of freedom, are you not to some extent denying others the freedom to use evolving social forces to condition their understanding of the term “freedom”? Surely you yourself will admit that you cling to this understanding of freedom because you find it pleasant and admirable. Is that a fair reason for imposing, either passively or actively, that understanding of freedom on others who may find another conception of freedom (more likely a more expansive, complicated one) more favorable?) In any case, two things should be clear from my two comment: my intention was to complicate your question to the Judge and your understanding of fundamental moral duties, as far as possible; and second, to show that no two people share the same understanding of freedom (you may have limited yourself to Locke and others, but I feel that Judge Nap would include questions concerning abortion into the debate concerning freedom.) Indeed, to ignore the freedom issues surrounding the abortion debate by maintaining a Lockean view of freedom is to ignore the inescapable fact that many people in the States believe that a woman has the RIGHT/freedom to an abortion and to ignore the changing contexts that shape our understanding of freedom. These complex contexts may in fact nullify any precise understanding of freedom, but to use the Lockean abstraction as the core and one and only definition of freedom is to impose a definition and vision of freedom that does not resonate with at least many people or the language of our time. Perhaps you use the Lockean understanding of freedom to ignore these complex issues and impose some “concretedness” on an otherwise unmanageable reality, but I feel that you are unjust in doing so. This should, at least, make you wary of your use of the word “freedom.”

    Although I have given extensive coverage to the term “freedom,” I hope you do not construe this to mean that I believe the Constitution should always trump freedom. I simply believe this question is infinitely complicated. For example, in Dred Scott, the original intent-ist Roger Taney refused to “give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” Some may argue that for Taney, the Constitution trumped individual freedom. But, in terms of the norms held by some during that time that associated individual freedom to hold property with the freedom to hold other human beings in bondage, he was in fact upholding both the Constitution and freedom and thus there was no conflict between the two subjects. So in this one case we have at least two contrasting perspectives on the freedom v. Constitution issue: from one perspective, there was a conflict and the Constitution trumped; from the other, there simply was no conflict and both subjects were upheld. The problem (a better term presently evades me) is that both the Constitution and the term freedom must be interpreted, which means that different observers of the same judgment will have radically different understandings of how these two subjects were “balanced.” Given your Lockean conception of freedom that emphasizes property (kindly correct me on the proper term if I am incorrect), how would you characterize Dred Scott? Can you confidently say freedom “lost” to the Constitution in Dred Scott? [Sidenote: Dred Scott is a truly mesmerizing case involving social norms, politics, race, economics, language, Constitutional law, and the cycle between social norms & conditions and Constitutional interpretation and language ...I hope you do not mind my using it as an example and I apologize if you have already pored over and read too much/discussed it too much (if that is possible)].

    I haven’t had the time to listen to the Judge’s speech, but be as it may, I still have questions about him. Anti-state but pro-life? Replace the (in his perspective) paternalistic and overbearing State with…the Church? I wonder who will enforce anti-abortion measures if there is no state around…a pleasant return to the Inquisition? Regardless, in order to safely attribute the label of “anarchist” to the judge, we must laboriously pore over his past speeches, public and private words, and what not in order to ensure that he is simply not taking advantage of the apparent barrage of anti-government sentiment in the States. I wonder what his views are on national security and his views during the Reagan/Bush/Bush II years? In any case, I advise caution before enshrining him as an anarchist simply because of a few remarks he made in one speech.

    I have written quite a bit already, and although there is much left to be said, I’ll give it a rest for now and look forward to your thoughts. Although it was not intentional, I apologize if anything in this remark is unclear.

    To Oktawian- I would caution your adoration of Anglo-Saxon judiciaries. Like most things in life, they have a tendency to disappoint when you don’t agree with their actions.

    Regards once again,

    MJIII

    Reply
  • Mikołaj Barczentewicz 01/08/2010 at 10:09

    I admit that my argument was somewhat sloppy. I should have added that it is not a position I hold, only one that follows from Rothbardian natural law framework.

    I agree with you that this approach is tantamount to imposing one’s conception of freedom. I don’t know if I appreciate the complexity of the issue of freedom, because it is one thing to say that it is infinitely complex, and the other to grasp the idea of infinite complexity. Nevertheless, I stand before this problem and I have no answer.

    I might feel inclined towards this particular conception of freedom, but all I can say is that I find it esthetically more appealing than any alternative, as you’ve correctly suggested. I certainly don’t claim that it makes this conception true, or that I would be arrogant enough to tell others that they should accept it. Many people do, but many more don’t and never will.

    I’d love to be able to give a more substantial answer, but I don’t have one.

    As for the issue of “moral agency,” what I meant is that as long as you are the one who is recognized by others as an agent (and not a tool, like an animal), you are also morally responsible for your actions. I assumed that slaves are like animals, they are not considered to “act,” so they are not responsible for their behavior.

    I don’t want to use Stephan Kinsella as an authority, but you might be interested what he and Roderick Long think about Napolitano’s answer to the “anarchy” question: http://aaeblog.com/2010/07/29/neapolitan-note/comment-page-1/#comment-357737

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So, what do you think?