 This is Mises Weekends with your host Jeff Deist. Ladies and gentlemen, welcome once again to Mises Weekends. Happy August to all of you. And I'd like to begin by congratulating a great friend of the Mises Institute, Glenn Jacobs, who won his election earlier this week as mayor of Knox County, Tennessee. So we're thrilled to see that. I'd also like to give a plug for our upcoming guest next weekend, who is Safideen Amos. He is the author of the book, The Bitcoin Standard, which is being touted by people like Caitlyn Long. There are a lot of shady people in the crypto industry. There are a lot of people writing Bitcoin books. This book is different. He comes at it from an Austrian perspective and he is building quite a name for himself in the process. Our show this weekend features our great friend, Judge Andrew Napolitano, and a talk he recently gave at our Mises University event. This talk is about the Declaration of Independence, not about the Constitution, which was basically a usurpation and a coup of the Articles of Confederation. The Declaration of Independence, by contrast, is a libertarian document. It is full of natural law tradition and we can still learn from it. Judge Napolitano talks about the relentless attack on those natural law traditions throughout the 20th century, and you might be very interested in his remarks on Supreme Court nominee Brett Kavanaugh in the process. So stay tuned for a great talk from Judge Andrew Napolitano at his Scorching Best and have a great weekend. I wanna talk to you tonight about some basic principles that underlie the Constitution and that underlie the Declaration of Independence and then we'll take some time for Q and A. If you've signed up for the class that I'm going to teach, it is on the Constitution and the formerly free market. But essentially, we are going to examine in a very rapid fashion, although you know this already, because if you signed up for the class, I know you did the readings, it wasn't that much. It was maybe about 350 pages, which is a weak worth of reading as Dean Mendenhall can tell you in any fine law school. But we are going to address the areas of the Constitution which the courts have used to authorize congressional interference with free market activities. They are the commerce clause, the spending power, the taxing power and the contracts clause. And we will do this in more detail in that class. The last of those classes on Friday, I like to call a constitutional free for all where I allow the students in the class and encourage them after having listened to me for a week and tired of the sound of my voice to throw any kind of question they want about the Constitution, whether we have covered it in the class or not. The study of constitutional laws, five credits. So it's about five hours per week in the classroom. There's about 140 to 150, depending upon how the class is put together, Supreme Court opinions that you need to master. These are cases that in theory every lawyer knows. Many lawyers forget them unless you practice this on a regular basis. So what I'll be doing in that class is a very small version of the basic course in the Constitution geared towards interference with the free market. So we'll start with a couple of things. Now, this is not me. That is not short for my name. That is the non-aggression principle. This is the natural law tradition. This is usually circled. P is for positivism. I'll go through these with you in a minute. This is the Declaration of Independence. The amendments were interested in in nine and 10 to the Constitution, which is down here. So we start with a couple of basic principles. One is that the Declaration of Independence embraces the natural law tradition. The natural law tradition teaches that our rights come from our humanity, not from the government. It teaches that we can, by the exercise of reason, discern right from wrong and acquire knowledge that will lead us to the truth without any assistance from the government. So when Jefferson wanted to underscore this in this in the Declaration of Independence, he used a phrase with which we are all familiar which every one of you knows. All men are created equal and endowed by their creator with certain inalienable rights, and among these is life, liberty, and the pursuit of happiness. By calling rights inalienable, he was sending a message which was embraced by everybody else that signed the Declaration of Independence, that the country would be wedded to the natural law tradition at its birth. Nobody really disputes that, although the disputes would come later on just 11 years later when it came time to write the Constitution. But nobody can really dispute the fact that the Declaration of Independence embraces the natural law. Now you might say, well, he said, endowed by their creator. Suppose I don't believe in a creator. The question is, did Jefferson believe in the creator? He once said, my own mind is my own God, yet he did write endowed by our creator. I have argued to our friends that do not believe in a creator, that you can still accept the concept of the natural law tradition, because we are the highest thinking beings on the planet, and by exercising our thought process, by exercising our reason, we almost always end up in the same place, discerning right from wrong, exercising the rights that we all believe in. This, of course, would come into play after we fought the revolution. I'll just tell you two stories that precede the Declaration of Independence and arguably push us toward the revolution. And one involves the Stamp Act, which was a means inactive of the British Parliament to collect revenue in the United States, in the colonies. I emphasize in the colonies, because they did this in Great Britain that would have been a revolution there before there was even a revolution here. The Stamp Act required that every piece of paper that the colonists had in their homes, every book, every pamphlet, every letter, every financial document, every legal document, have the King's stamp on it. It wasn't a stamp as we know it now, it was closer to what you would have if you had an old-fashioned ink pad and you stamped the ink pad on it and you could only get that done at a British vendor's office in the colonies and you paid the vendor for it. So that's how the revenue went back to Great Britain. Question, how did the King and the Parliament 3,000 miles away know if you had stamps on every piece of paper in your house? Answer, the Ritz of Assistance Act. This piece of legislation permitted British agents to appear before, see if this rings a bell, a secret court in London. And the secret court, which only heard the government side, issued what's known as a general warrant. And a general warrant is a piece of paper signed by a judge of the court, which says, search where you want and seize what you find. So it wouldn't be uncommon for a colonist to hear a knock on the door, and it was a very polite British soldier or other government agent handing you the general warrant behind which a slew of British soldiers rushed into your house ostensibly looking for the stamps. Of course, they might help themselves to booze if you couldn't prove that you had paid a tax on it. They might help themselves to furniture if they thought it came from the islands and you couldn't prove that you had paid the King his tax on the furniture. They might even help themselves to the house and kick you out, which is why we have the Third Amendment that prohibits the quartering of troops. Well, some very bright students from a school called the College of New Jersey now called Princeton did some math and figured out that it cost the King more to enforce this tax than was generated in monies collected. Now that's a head scratcher. George III was an idiot. But was he that stupid? What government would enact a tax that cost more to enforce it than was collected? Unless the purpose of the tax was not to generate money. Unless the purpose of the tax was to remind the colonists that the King was still their King and he through his agents could set foot into their homes and cross their threshold without any suspicion or probable cause or evidence of crime, but just on the basis of a general warrant. The Stamp Act, of course, was rescinded a year later. It was one of the intolerable acts. The Ritz of Assistance Act stayed into existence. The secret court kept meeting until the King was overthrown in 1776. Okay, we fought a revolution, we won the revolution, we wrote a constitution. The constitution is written in Philadelphia in 1787 in secret. We know about a lot of the secrets today because little Jimmy Madison was the scrivener. I say little, Jimmy was four foot eight. I would love to stand next to him because I'm not tall, but this would, Jimmy would make me look like Shaquille O'Neal. Little Jimmy, a graduate of the College of New Jersey. I don't know if he was one of the students that did the math that undid the Stamp Act. Little Jimmy kept all the notes on the constitution because everything was in secret. And little Jimmy was such a great scrivener that many of his notes actually became the constitution itself. So the most authoritative source on the original understanding of the constitution, a theory now called originalism, are the notes of Madison as well as some of the things that he said afterwards. In fact, not only did he write the constitution, that doesn't stand for Bill O'Reilly, that stands for Bill of Rights. He was the chair of the committee that wrote the Bill of Rights. Imagine that one person wrote the constitution and wrote the Bill of Rights. So his words are often called upon, his writings are often called upon to interpret the document. We have his writings today. We didn't get the writings until after he died because he not only did they meet in secret, very few of them took notes. Some of the others did. His notes were the most complete, but he made sure that nobody saw them until after he died. So one of the great first arguments they had there is, are we sticking to this? You know, we're running a government now. Do we really believe that these rights are natural? Well, if they're natural, they can't be taken away by the executive or the legislative legislature, they can only be taken away if the possessor of the right waves them by violating somebody else's rights. If I rob a bank, I have violated the rights of the owner of the bank and the depositors in the bank, so I give up my rights. I personally have given them up, but the legislature can't declare ahead of time Judge Napolitana was about to rob a bank, so we will enact legislation to take his rights away because that branch of the government can't take rights away. Do we really wanna stick with this natural law stuff that Jefferson wrote in the declaration when we're writing a constitution? So there is this argument between the natural law tradition and its arch enemy, positivism. Positivism teaches that the law is whatever the law giver says it is, as long as it was enacted pursuant to procedures that have been set down, as long as it's reduced to writing and as long as it's been ratified, accepted by whoever is in a position of authority. So if the law giver says there's no freedom of speech, is there freedom of speech? Well, that depends upon which theory you accept. The opening lines of the First Amendment, Congress shall make no law abridging the freedom of speech. I could ask what's the most important word in that line. It's a trick question. Congress shall make no law abridging the freedom of speech. The most important word is the one that you would think is the least important, the, the freedom of speech is Madisonian for, we recognize its pre-existence. We recognize that it existed before the government did. So therefore it didn't come from the government, it must have come from within us. So think of the Bill of Rights. These are what we call negative rights. They don't grant rights. They recognize the pre-existence of the rights and they negate if the Constitution is being followed, the ability of the government to interfere them, interfere with them. So the First Amendment, Congress shall make no law abridging the freedom of speech, doesn't say Congress shall grant freedom of speech. It says Congress shall not interfere with it. So all of these rights in all of the First Ten Amendments will get to nine and 10 in a minute, which are really added to make sure that this natural law tradition is still followed. All of these rights represent the natural human yearnings that we all have. You're right to think as you wish. I'm going down the amendments. I'm not gonna do all of them. We'll do all of them in the class that I'll be teaching later this week. You're right to think as you wish, to say what you think, to publish what you say. You're right to develop your own personality. I've told O'Reilly a hundred times you better be grateful that that's a natural right. You're right to worship or not to worship. You're right to associate or not to associate. You're right to defend yourself, which of course is not the right to shoot deer. It's the right to shoot at tyrants. If they take over the government and we have to drive them away, we have to secede just as we seceded from Great Britain. You're right to stay in your house without the government's troops coming in, the Third Amendment and the quintessential American right in the fourth, the right to be left alone, which of course today we call privacy. The fourth is the most unique one because it says the people, doesn't say the citizens, it says the people shall not be interfered with in their persons, houses, papers and effects, persons, houses, papers and effects, except by a warrant signed by a judge based on probable cause. Probable cause means probable cause of crime. It doesn't mean probable cause that you're talking to a book agent in Florence, a real case in which the NSA was listening to a conversation in Italian. They thought they were hearing a terrorist. They were just hearing a guy in New York trying to buy a book from the book agent in Florence. When the case came to court, the judge said, well, there's no prosecution here. They didn't come after you for anything you said. Therefore, there's no violation of the Fourth Amendment. Who wrote that opinion? See if you've heard of this guy, about which more later. I don't have any fingerprints left because my fingers have gotten burned so much in the past 10 days over this nomination. Another story for another time. Back to the Fourth Amendment. Not only does the Fourth Amendment say only judges can issue warrants, not only does the Fourth Amendment say they can only issue it by probable cause, not only does the Fourth Amendment say the probable cause must be asserted to the judges under oath, but it says that the search warrant must specifically describe the person or place to be searched or thing to be seized, eradicating forever the concept of general warrants which had been visited upon the colonists to enforce the Stamp Act. This was at least the theory of the amendments. The rest of the amendments deal with speedy trial and the right to confront the evidence against you and the right to have a lawyer. Until we get to nine and 10, nine was little Jimmy's way of really reminding everybody about that. Natural law tradition. Nine says that the rights enumerated in this document shall not be construed to be all the rights and the government shall not interfere with other rights retained by the people. An obvious reflection of the existence of other rights too numerous to tick off in the first eight. The 10th, of course, which thanks be to God, has enjoyed a bit of a revival in the past couple of years is the one that says whatever we gave to the federal government it has and whatever we didn't give to the federal government are rights retained by the states or the people. Again, a recognition of the existence of something that people have that didn't come from the government and that was not transferred away when the Constitution came into existence. Now, again, it's not my last name but you know what this is, the non-aggression principle. This is the essence of why we are here. I have given you history. The non-aggression principle stands for the proposition that all human behavior is lawful and moral unless it interferes with somebody else's rights unless it is aggression against somebody else. So if Putin takes over Crimea is that aggression against the United States? It is not. If somebody is standing in a street corner saying, Napolitano is a fraud, don't listen to anything he says is that aggression against me? It is not. From this stems much of the economic and philosophical views incorporated in all of this basically standing for the principle that what's yours is yours and what's mine is mine and I have to leave you alone and you have to leave me alone and I can do what I want until I interfere by aggression. Now, aggression could be force or it could be fraud. Because fraud is an act of aggression without using force, using stealth and trickery to interfere with somebody's rights as opposed to violence. The counterpart to this natural law tradition is what Jefferson said is the basis for government and that is the consent of the governed. Jefferson argued in the Declaration of Independence that these two principles are rights come from our humanity and no government is lawful without the consent of the governed with the two most radical ideas he had ever articulated. If you wanna read Jefferson Unleashed, I suggest reading his letters back and forth to his former enemy, John Adams. I say former enemy, they hated each other. Adams was a big government guy, a federalist, Jefferson was an anti-federalist. When Jefferson was Adams's vice president, they didn't speak. Didn't speak. What do you remember how people got elected in those days? Everybody ran for president. Whoever finished first became president. Whoever finished second became vice president. Okay, Hillary, can you cover that funeral for me next week? Well, they really didn't speak. And Adams, of course, got carried away with Jefferson's relationship to the French. Jefferson had been the ambassador to France during the blessed Articles of Confederation days. And then when George Washington became president, Jefferson was his secretary of state. But when Adams became president now, so it's eight years into the country, he's only president for four years, Jefferson's the veep. There spreads through the land something inconceivable, at least inconceivable before last Sunday. What's today, Monday? Inconceivable before yesterday. And this inconceivable thing is fear of the French. We know how good they are at playing soccer, but this was fear that the French were going to do to John Adams what they did to Louis XVI, cut his head off. And that because Jefferson had spent all that time in Paris and was friends with all these radical crazies who believed in human rights, the same thing might happen here. So in order to address this fear, the Congress enacted and President Adams signed into law, the Alien and Sedition Acts. In my view, the worst or the second worst piece of legislation ever enacted by the United States Congress. I'll tell you about the worst in a minute because it brings us back to our friend. So the Alien and Sedition Acts says, we're a new country, we're looking for people. If you come here, if you farm five acres and you do it for a year, you're automatically a citizen. We don't care where you come from, we don't care about your health, we don't care about your money, we don't care about the color of your skin. Unless you're French. If you're French, you have to wait 14 years before you become a citizen. Oh, and by the way, this is not only to you newcomers, but it's to the people that are here already, particularly Jefferson's friends. Anybody who uses words that will portray the government or the president or the Congress untruthfully shall be subject to prosecution and confinement in a federal institution for two years. Okay, so here's a head scratcher. How did the same generation, in some cases, the same human beings who wrote, Congress shall make no law abridging the freedom of speech. When they get into power, abridge the freedom of speech. A congressman, that's one of my historical heroes, by the name of Matthew Lyons, the Ron Paul of his day, represented Vermont and decided he would challenge this statute and he would challenge it to the president's face. Now, President Adams suffered from something that a lot of middle-aged men suffer from, an ever-expanding waistline. And in order to cover that waistline, Mrs. Adams sewed purple robes for him. And he didn't like the way he looked wearing just purple, so he asked her to put gold epulets on the shoulders. Adams, who was about as wide as he was tall at this point in his life, he would eventually lose a lot of weight, could be seen trudging through the beginnings of Washington, D.C., and the mud and the muck surrounded by an entourage, but it looked like just a purple mound walking through the streets. Confronted by congressman Lyons, who said, good morning, your pomposity. So Adams didn't like it and nobody liked it, but they didn't pay any mind to him. He's a crazy libertarian from Vermont. Why would we even listen to him? By the way, the reason that congressman Lyons did not insult the president on the floor of the house, where he was a member, is because of the speech and debate clause, which insulates members of congress from being prosecuted or sued because of words uttered in speech and debate on the floor of the house. So he knew he had to do it in some other context. About a week later, he brought the press with him and found the purple mound and Mrs. Adams walking through the street and he said, good morning, your rotundity. And for that, they finally had him. I mean, they hated him to begin with, but they finally had him. He's prosecuted and convicted. Everybody thought the prosecution was a joke, but it was serious. They prosecuted him in Boston, even though the words were articulated in Washington. It's very interesting because one of the complaints against George III in the Declaration of Independence is he has taken us to far away places to try us before foreign juries where we are unknown. So again, the very people that signed the Declaration of Independence when they came into power under the Constitution began to do some of the things that they complained about with the King. Congressman Lyons in jail did something that might be familiar to some of you. If you are from Chicago, Boston, New Orleans or Hudson County, New Jersey, you're familiar with this phenomenon. Congressman Lyons ran for reelection from his jail cell. And he won. And he couldn't wait to get back, there's no newspapers, he probably didn't even know the date. He couldn't wait to get back to Washington DC to confront the Purple Mound when in the place of the Purple Mound was the Reed Thins, Tolles, Slender, Ravenhaired, Thomas Jefferson in the White House who proceeded to pardon Congressman Lyons. He also pardoned the other seven people who had been prosecuted under this act and returned to the Congressman and his family the 480 acres of land that the federal government had seized because Congressman Lyons insulted the president's waste line. One more story, then we'll try and put this all together and then we'll do the Q and A. I love Madison, I really do, but I gotta tell you this one. So it's the War of 1812. Either the British tried to take us back or we tried to take Canada from them. It's unclear how this started, but it's devastating. They burnt the White House, they burnt the Capitol building for a while, it looked like they were routing us. We had no army, we just had militia. Washington was dead, there wasn't a great military leader to defend the country. And basically the war was a series of small skirmishes between British platoons of about 50 or 60 and however many militia could be mustered up amongst the country folk. So in Upper Marlboro, Maryland, a platoon of about 50 or 60 British soldiers marches into town, sort of takes over the town and captures six men, it assumes they're members of the militia and announces they're gonna be hanged at dawn. The militia invades the encampment and captures about five soldiers that announced they're gonna be hanged at dawn. The mayor of Upper Marlboro, Maryland, John Hodges, a very famous name in constitutional history, can't allow this to happen and decides to do the following. Unarmed and unaccompanied, he walks in the middle of the British encampment, finds the captain and says, I'm going to return your soldiers to you if you return our townsfolk to me. The captain says, done. The prisoners are exchanged, the British leave. The war is over, two months later. There's a tumultuous parade. Mayor Hodges is the grand marshal of the parade. The federal judges are there, the state judges are there, the prosecutors are there, the sheriffs are there, every public official is there, everybody in the town is there. The mayor is introduced by the one federal judge in Maryland, the mayor gives an unbelievable speech. He's the hero of the moment. Now I don't think this could possibly happen to me here at the Mises Institute, what happened to the mayor after he finished speaking. He leaves the podium, he steps down two steps and two strangers approach him. One of them puts shackles onto his wrists and the other hands him a piece of paper. They were agents of the justice department. He was being arrested for treason, providing aid and comfort to the enemy in wartime by returning the British soldiers to their platoon. Okay, so there's a trial. The judge that introduced him at the parade is the one presiding over the trial. Everybody in the trial knew him. There's no evidence presented. The prosecutor stands up and said, you know what, we are federal prosecutors, we're doing what we've been instructed to do and under the constitution, he did literally provide aid and comfort to the enemy in wartime. That's the government's case. The defense stands up and says, everybody in this room, including these good gentlemen of the jury, there were no ladies on the jury at that time, a major defect in our thinking, but I was since corrected. Gentlemen of the jury, you know what a hero he is because you all saw the human life that he saved. Then the judge says, now I've never said this when charging a jury. All right, so we have reserved a room for you in the tavern across the street. After dinner and after you finish the tavern keeper's best ale, we want you to deliberate on this case. Four person raises the answer. We don't have to deliberate. We already know the answer. Have you deliberated already? No. Have you taken a vote? No. But I know as the four person what this verdict is. What is it? The verdict is not guilty. This is the first example that's recorded in the case books of jury nullification. A bunch of farmers saying to the federal government, stay the hell out of here and leave us alone. All right, to bring it back to this. The Justice Department has had a rule since day one that because treason is the rare federal crime for which the defendant if convicted can be executed where the defendant has not caused a death by his own hands that all trees and prosecutions have to be personally approved by the President of the United States. You know, what left wing Pinko positivist creep was the President of the United States in 1812? Little Jimmy who wrote the Constitution and wrote the Bill of Rights. Okay, so now we have to ask ourselves some questions. And the questions are, is this for real? Does the government really believe in the natural law tradition? Is this for real? Has anybody really consented to the government? But do you know anybody that's consented to the Constitution? I mean, do you consent to the Constitution by voting suppose you don't vote? Do you consent to the government? If the people you voted for are not in the government? Do you consent to the government by walking on the sidewalk? If the government really believes that our laws are natural, then how could we have the Patriot Act which permits federal agents to write their own search warrants for getting the requirement that only judges can issue search warrants under the Fourth Amendment? I can tell you stories about the Patriot Act, but not only does it permit federal agents to write their own search warrants, so FBI Agent A writes a search warrant authorizing FBI Agent B that's got to be at least two of these characters involved in this, and then B can serve the search warrant. And when they serve the search warrant, they say, by the way, you can't tell anybody that we serve this on you. That's another violation. You can't tell anybody. The government's going to enforce silence? What about Congress shall make no law abridging the freedom of speech? What young lawyer was the scrivener when they were putting together the Patriot Act? There he is. Now you know why I was willing to get my fingers burned by pointing this out 10 days ago. Well, we'll see where that goes. Maybe Rand Paul can persuade Mike Lee and one or two others that this really is a danger to our existence. But I'm fascinated with are our rights truly natural and does, has anybody ever consented to the government? Has anybody consented to the form of government that we had, that we have? Or is it just a myth? I mean, Lou has pointed out in one of his brilliant essays that a lot of people in the government, not Ron Paul, but almost everybody else suffers from something called libido dominandi. Now don't get any bad thoughts, not that kind of libido. This is the lust to dominate. This is original sin if you're a theist. And we must really labor against putting people in the government who have this lust to dominate. Even little Jimmy who wrote all this stuff let the lust to dominate. And consent to the government reminds me that not only as Avon Mises said is government simply the negation of liberty, which of course reflects this since human beings are the repository of liberty. By the way in 1776, which Jefferson wrote this, the idea that human beings were the repository of natural rights was alien, certainly alien to those in the government. Towards the third fought a war so that those ideas would not spread. But the consent of the government brings the other problem with government. First problem is libido dominandi. And the other is my view that government is essentially a myth. It is based upon mythology. Make believe the king is divine. Make believe he can do no wrong. Make believe the voice of the people is the voice of God. Make believe that the people have a voice. Make believe that the representatives of the people actually do represent the people. Make believe that the old men are created equal. Make believe that they're not. And when we accept these myths, what do we end up with? We end up with those who in the name of all of this will curtail our freedoms. I have often argued particularly to young people in audiences like this that freedom comes from the human heart. We'll know it when it's there but the heart is a muscle that requires exercise. And freedom requires exercise. At some point you'll know when and how to exercise that freedom. Well, I expect that when I reach the end of my days I will die in my bed surrounded by those who love me faithful to first principles. But some of you might not have that liberty. Some of you might die faithful to first principles in a government prison. And some of you might die faithful to first principles in a government town square to the sound of the government's trumpets blaring. When the time comes you'll know what to do because freedom lies in the human heart. But it must do more than lie there. Thank you my friends and God bless you. 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