 My name is Lou Rockwell on a behalf of the Mises Institute. I want to welcome all of you here tonight to a treat. I should mention that this is part of our big summer program the Mises University More than a hundred and fifty students from 19 countries 133 colleges and universities 35 states coming to Alabama and this heat to study Austrian economics and Of course, Judge Napolitano was a star of the program What do we say about the judge? Well, I you know one thing I think about him when I when a word that defines him Or at least part of him is brilliance This was a man. It was a brilliant student as an undergraduate at Princeton a brilliant student at Notre Dame Law School a Brilliant practicing attorney a brilliant judge a brilliant law professor a brilliant senior judicial analyst on Fox News a brilliant Founder and impresario of a freedom watch the greatest news and opinion program in my opinion ever on American television The author of a whole shelf full of best-selling books So that's one aspect of him Another aspect of that is but I think more important than brilliance is principal This is a man guided not by the norms of DC or the norms. I would say of the American judicial system in terms of positivist law and so forth He's guided by something much more important by the natural law And by the God who created that natural law So this is a man. This is a great moral voice as well as an important legal voice as well as a very important libertarian We're so honored that he comes and spends this time with us every summer We're so glad that you're here to hear his opening lecture Help me welcome the great Andrew P. Napolitano The trick of course is to get an ovation like this at the end Thank you. Thank you. I'm deeply moved judge Denson my mentor in the audience your honor Thank you very much for coming here notwithstanding the name of this building, but it's very good to see you Thank you for for coming. I think they kept me out there, so that couldn't hear what Lou was saying So I have no idea what he said to gin you up the last words I thought I heard him say we're freedom watch which of course was a short-lived but much beloved show on on Fox News channel I Have often told Lou that this is the happiest week of the year for me because I don't have to worry about what I say I'm not going to get in trouble with the audience My bosses are my friends and colleagues, and they agree with what I say you probably know What I am talking about so even though I at Fox have often been at adverse to Republican administrations I'll tell you a short story about how I am in some small way responsible for the administration of George W. Bush in my view a disaster for civil liberties a Disaster for world peace, but I can't change history So I'm going to take you to the recount era if you remember that this is now late November early December of 2000 and As Fox's chief legal person I have to become an expert in Florida election law truly the most arcane Law that I have ever applied myself to attempt to understand if you recall hanging chads and dimple chads And what counts as a vote and what doesn't count as a vote and one night I was on air with my colleague Brit Hume I was in New York. He was in Washington through the magic of television It looked like we're in the same room when we were talking about something having to do with the election when all of a sudden Fox Does what we do so well about 25 or 30 times every half hour swoosh Fox alert everything's an alert so well When you're the anchor and you hear the swoosh Fox alert you don't know what's coming it's some breaking news and The we all have a little device that we wear in our ear Which is attached to a battery pack which allows the producers to communicate to us wirelessly Producers are saying to Brit. Just read the prompter. So he reads the prompter The Florida Supreme Court has just ruled that the recount Will resume not only in the four counties where Governor Bush has challenged vice president gore seems funny to talk refer to them by their titles But that's what they were at the time And it is also ruled that the recount resume in the remaining 68 counties of the state of Florida and Governor Bush's lawyers have announced they're going to appeal this ruling to the United States Court of Appeals for the 11th Circuit in Atlanta now at that point the prompter ends the script that he's reading ends He doesn't know what to say so he looks at me. He goes. What do you think about that judge? So I said well, that's very interesting because the United States Court of Appeals For the 11th Circuit in Atlanta does not have jurisdiction to hear an appeal from the Supreme Court of Florida Well, this this peaks his interest really what should Bush's lawyers do I look at my watch It was ten minutes of seven. I said they should get in their cars and drive to Georgetown Georgetown Yes, Georgetown to the personal residence of Justice Anthony Kennedy. He's the emergent duty justice assigned to take emergencies tonight and they should Knock on the door of his home and he or Mrs. Kennedy will come to the door Hand them a petition if he physically takes the petition He's got to do something with it which will probably stop the effect of the Florida Supreme Court ruling until the other eight Justices can vote the next day at that point Brits show is over Seven o'clock. I go upstairs to my office to take a nap because at ten o'clock. I have to go through this nonsense again But this time with O'Reilly, of course One can use all the rest one can get for an experience like that While I'm sound asleep the following happens my ever-charming ever-garaless never one to miss an opportunity colleague Shepard Smith is on Something about the the recount what all of a sudden swoosh Fox alert and they're saying to him Shep Don't add lib. Don't make anything up. Just read the prompter. So he starts reading the prompter Governor Bush's lawyers have just been cited in Georgetown Looking for the personal residence of Justice Anthony Kennedy Then of course he had lips. Do you know what that means? That means that George W. Bush is watching Fox And he's getting his legal advice from Judge Napolitano The rest of course his sister I've been harshly critical of that opinion Because it was a interference in a state function the counting of state ballots By the federal judiciary, but of course we all We all know the outcome one of my great historic figures and I'll put them in perspective in a couple of minutes is St. Thomas Moore and at the Moore's trial for treason Where he represented himself and he knew he was going to lose it was really just a show trial and he was executed three days later The alleged and under the horrific laws of the time proven act of treason was silence Silence his refusal to state affirmatively that the king and not the pope Was the head of the church and by for that silence He was charged with treason and he was convicted in making his argument Which he knew he would lose so he was talking for posterity in his own defense in his closing argument There's actual transcript of this you can read it was taken down by monks and then published He made the following argument to the jury Some men say the earth is round and some men say it is flat But if it is round could the king's command flatten it and If it is flat could enact the parliament make it round now What is he saying there of course Parliament can't make a make a flat earth round And of course Henry VIII for all the heads he could cut off couldn't make a round earth flat But he was arguing that there is there are restraints on government and those restraints come from nature From the natural order of things. This is not a novel argument More obviously studied in his youth. This was articulated by Plato and Aristotle and Augustine St. Thomas Aquinas is the principal modern author of this argument. It would be picked up by John Locke by one of My favorites and I suspect a hero for many of you as well Thomas Jefferson It would even be articulated in the modern era by Martin Luther King Jr. And even by Justice Clarence Thomas on the Supreme Court and the argument is For the natural law the actual phrase is natural law tradition, but lawyers usually use NL underlined its opposite It's a monstrosity called this positivism if you could Put the two legal theories that underlie the Constitution into two categories There are many there. There are a half dozen versions of positivism about four versions of the natural law But if you could put them in two categories You'll have a clearer picture of where our how our liberty is protected in the Constitution So the natural law tradition abbreviated NL line underneath teaches that our rights are knowable by the exercise of reason and that all human beings exercising reason Will come generally to the same conclusion as to what's right and what's wrong and all human beings exercising reason will be exercising the freedom that comes from within us So your your ability to think as you wish to say what you think To publish what you say Your right to develop your personality as you see fit. I've often told O'Reilly. He should be grateful that that's a natural, right? May safely be articulated. It's having its origin in the natural law tradition And the natural law tradition of course can come from two sources as well One is the traditional belief in the Almighty. I'm a traditional old-fashioned Latin mass Attending Roman Catholic so it's very easy for me to accept that the triune God created us and we share his greatest asset Without with us and that is freedom as he is perfectly free. We are perfectly free one does not have to be Catholic or Orthodox Jewish or conservative Protestant or even a theist at all in order to accept this because the other argument underlying the natural law is one of human dignity whereby we all share the same amount of human dignity because we are the most important rational figures on the planet and because we have that Importance and because we all have that dignity. We respect it in each other either of these theories the more traditional Judeo-Christian or the secular but perfectly rational will bring you to the concept that our rights come From our humanity now This is not just an academic argument Because if our rights come from our humanity then they didn't come from the government and the government can't take them away until of course we get to this positivism usually shown by lawyers and Legal scholars as P in a circle positivism which doesn't mean positivism as in the opposite of negativism means positivism as in posit as in Articulating the law positivism teaches that the law is whatever the law giver says it is and so long as it is Articulated so long as it is written down so long as it is ratified then it is the law No matter who the law giver is so the law giver could be the king of Saudi Arabia who on a whim decides to change the laws of succession He articulates it. He writes it down his cronies ratify it under positivism That's the law of the land the law giver could also be the Congress of the United States of America Which says you can't give more than $2,300 to a political Campaign even though that denies you the right to use your Hard-earned money as you see fit because the Congress wrote it down because it followed its own rules when it wrote it down Because it was ratified that is the president signed it or two-thirds of the Congress accepted it under positivism It's the law of the land So I'll suppose Congress wrote a law that interfered with something that we would take as a natural right like the freedom of speech Then of course we have these sort of sticky areas where positivism and the natural law tradition may overlap so if you're taking my class This week on the Constitution and the free market really should be called the Constitution and what little remains of the free market One of the first questions I asked I'll tell you right now what the first question is The first amendment says Congress shall make no law abridging the freedom of speech And the question is what's the most important word in there Congress? Shall make no law abridging the freedom of speech notice the language it doesn't say Congress shall grant Freedom of speech. It says Congress shall not abridge something that already exists. Well if it already exists Where does it come from? Doesn't come from here because it wasn't posited by the government it Pre-existed the government and therefore it comes from here that of course is Jefferson's argument in the Declaration of Independence all men are created equal and doubted by their creator with certain inalienable rights and among these is life liberty and the pursuit of happiness Jefferson Though there's some statements in the Declaration of Independence and in the class I'm going to start tomorrow We're going to go through it line by line that are offensive to the modern ear It nevertheless is a clear Articulation of the natural law tradition and even though Jefferson himself was a deist he He explains the natural law tradition in the Declaration of Independence from the God the Father angle that God created us Calls him the creator and our rights are inalienable Inalienable cannot be separated from us. Well suppose The dictator or the king or the Congress Excuse me for repeating myself It's the tyranny of the majority can be worse than the tyranny of a madman because the tyranny of the majority purports to have Legitimacy to it a madman is never legitimate. He's only in power because he has guns But the majority is in power because we accept it nevertheless Whatever the source here is whether it's the Congress or whether it is a madman running the government Imagine that a madman running the government Got the story for another time. Where's Walter Block? Is he here? The only libertarian that supported Trump. Well, that's okay. Let's not go there. I Don't want to go there. I don't want to start with that. So I won't So there are rights in the Constitution That come from both camps Because we have the bill of rights So there are those rights that are written down. We'll just go through them your right to speak Your right to publish your right not to speak your right not to publish your right to worship your right not to worship Your right to defend yourself second amendment your right to keep troops out of your house in wartime Third amendment your right. This is my favorite. This was Jefferson's favorite in the fourth amendment You're right to be left alone Which is basically the fourth amendment keep the government on the other side of the threshold of my house your right to life liberty and property Belowing to you staying with you and if the government wants it it has to go through due process of law You're right not to be tortured. You're right not to have to testify against yourself I am listing from one through eight The professor that could write backwards. I never really perfected that I am listing from one through eight The rights that are posited that are actually written down ratified accepted in the first eight amendments My favorite is the ninth Because the ninth brings us right back to where we started the ninth amendment says just because we listed rights in the first eight Doesn't mean that there are not other rights that belong to the people that would be too numerous to list That's the natural law argument that because our rights come from our humanity. Don't think that we could possibly list them all You know there's a famous debate amongst two Supreme Court justices you list all the rights you want and I'll list another 20 and you'll list another 20 and I'll list Another 20 and we'll do this until the cows come home the ninth amendment Takes care of that problem for us when rights Come from both camps So there are statutes that articulate them and they come from the natural law tradition They fall into this very very unique area that we call substantive due process So substantive due process is a fancy phrase for Human behavior so integral to the happiness of each person That we will make it more difficult for the government to interfere with that behavior Regrettably not impossible for the government to interfere with that behavior But more difficult for the government to do so if Jefferson was to be taken literally and if all of these rights think of the first day Speech down to the right to have a lawyer at your trial to confront the witnesses against you to have a speedy trial If Jefferson were to be taken literally them these rights are inalienable inalienable means they can never be taken away Okay, can you shout court can you shout fire in a crowded theater? You can if the owner of the theater lets you so when people say the first amendment prevents you from shouting fire in a crowded theater It depends on who has the property rights. I Might shout fire here because Lou Let's me because I want to see what your reaction is and it's nothing to do With the first amendment which only restrains the government Congress Shall make no law abridging the freedom of speech after the 14th amendment We have applied that to the states as well. So even though it says Congress it now means no government Shall enact any law abridging the freedom of speech shortly after a world war actually during World War one Oh, I hate even to mention his name Woodrow Wilson. Sorry. I had to get it out Had the precursor to the FBI arrest people for singing German beer hall songs in bars and for reciting the Declaration of Independence outside of draft offices and When the defendants who were arrested and prosecuted challenged this as a violation of the First Amendment the Justice Department argued Well, the First Amendment only restrains Congress doesn't restrain the president. Oh So the whole purpose of the Constitution is to separate powers Congress writes the laws not the president The president enforces the laws the courts interpret them But the reason I tell you this silly but true Story is because the word Congress has been modified significantly through the 14th amendment so that now all of our rights that are guaranteed in the first eight With the exception of bail another story for another time Are applied not only to the federal government, but to the state government as well So what is substantive due process? What kind of things are in here? That would make it difficult for the government to reach for a answer that If the government wants to impair your ability to do something Let's say lower the speed limit in front of this building from 35 to 20 And you challenge that saying well it takes me too long to get from A to B at 20 Nobody really wants to go at 20 feel like you're going backwards driving 20 miles an hour The government only has to show in order to To satisfy the court that it has a rational basis For that law any rational basis that the government comes up with there Too many students that have too much to drink and they're out all night And we want the cars to go slower so that they can stop faster because this is a college town All right, that is a rational basis Because traveling on a government roadway does not fit in here But when something like choosing a mate choosing a person to marry Fits in here Then the standard for government interference is elevated from rational basis to something we call strict scrutiny and strict scrutiny Puts a heavier burden on the government before it can interfere with rights that are in this box this substantive due process box Here the government only has to show a rational basis For strict scrutiny the government has to show that it has a compelling reason for interfering with the right and That the means it is choosing to effectuate that interference is the least Restrictive alternative available. That's a high bar for the government to meet But sometimes the government can meet it So even though we have these rights that we cherish that are in the box The government can still reach those rights by reach them I mean regulate them interfere with your exercise of them if it can show if it can pass strict scrutiny the type of rights that are in here are often those pertaining to personal lifestyle Choices intimate behavior pursuit of happiness. So you're right to have children is protected by substantive due process You're right to raise your children however you want is protected by substantive due process Your right to choose a mate same sex or opposite sex is protected by substantive due process not inalienable Because the government can still reach it and regulate it and punish you if it doesn't like the way you exercise it if it can meet This strict scrutiny standard. Now. Here's the bad part of this What is not in that box? Economic Liberty Economic Liberty was in that box until 1937 went in a footnote in a Supreme Court opinion called Caroline products the court declared We're still going to apply strict scrutiny for everything that substantive due process, but economic Liberty is no longer in there In the course that I'm teaching and this is not an advertisement for the course of course I will show for those of you taking it the very slow steady Methodical process some fits and starts some one step forward and two steps backwards But for the most part the slow march of the government regulating what remains of the free market But when they took economic activity out of that box after it had been in there for 115 years Then the March became a gallop and then the states of course followed suit and in the era post 1937 and Tom Woods of course in his Fabulous lecture about Murray Rothbard last night which I watched on my iPhone on the car in from the from the airport Tom always learned from you now how smart I think I am. I always learned from you points out the evils caused to our pursuit of happiness By the government regulating the economy because the Supreme Court Not the Congress not the president not the people but the Supreme Court took Economic freedom out of that box and they did in a footnote Which probably wasn't even read by the other justices and wasn't even recognized until after it had already happened And hardly was necessary for the resolution of the case, but that footnote alone So you're at a cocktail party Handsomely dressed young man in the upper east side of Manhattan Someone's passing you a can of pay say hey by the way, what do you think of footnote 4 and Caroline products? See now you know the answer because footnote 4 of Caroline products removes economic liberty from that box It then articulated for 3,000 years It's part of the natural law It had been assumed by all the laws written by the Congress up to and the states up to that point But when they took it out of the box when they removed Substance it removed the protection that substantive due process gives to certain rights that just unleashed Federal government when FDR era now it's 1937 as well as the state governments to enact the type of horrific regulation and interference with Human freedom that we now have now This is not always the word that's used So for rights that are in here they come from here natural law tradition They also come from here the court sometimes uses other words because it's afraid of this phrase Even my late friend Antonin Scalia was afraid to use this phrase because he thought it sounded too Catholic He's dead now, so I could say this stuff So sometimes and instead of saying natural law or a natural right the court will refer to it as a substantive right or a fundamental Right or here's one of my favorites of Justice Scalia like this excuse me for kneeling a pre John Denson loves this too a Pre-political right. Wow. What the heck is a pre-political right one that? Existed from before there were governments same thing as a natural right, but the court will use these different phrases one two Three to avoid using this because it sounds too religious When they want to articulate the the fundamental nature as coming from our in our humanity of a right So in the recent Supreme Court opinion called a district of Columbia versus Heller, that's the second amendment case written by Justice Scalia Which established once and for all that the right to keep in their arms is an individual personal right It's not a collective right that belongs to a militia and I chastised them for this of me chastising mark So we had one or two many glasses of red wine and we sort of got into it Why did you call it pre-political? Oh, I know you want to call it natural You want everybody to be Catholic or it's nothing to do with being Catholic But half this stuff came about before Jesus Christ was even born. So how can you say it was Catholic? But by calling it pre-political this is actually the favored phrase of those who like your humble lecture tonight love the natural law because it's very very descriptive as existing before The politics of the land did the other phrase fundamental liberty just another word for what's in there and again substantive right is another word that's Describes what's in there as well, but this is the favored one in the modern secular era which we find ourselves today referring to rights as pre-political I Had a I discussed this on air. So this is not a secret. I had an interesting conversation Ah with the man in the Oval Office. He wasn't in the Oval Office at the time. He had already been elected and he asked me to Come in and talk to him and he said if you could change any Supreme Court opinion, what would you change? How am I gonna talk to him about footnote 4 of Caroline products? But I did say to him, you know, Mr. President there is no rational basis For taking economic freedom out of that box Get the government off of everybody's backs And we will all flourish and thrive. I tried to make that point to him as best as best I can and for those of us that Teach and write and talk about the natural law it's very important because The court shouldn't have the power to remove whatever it wants from that box By the way, Congress has tried to put things in that box Court has taken them out Basically said that box is ours and we decide What goes in there Congress attempted to do that with the Religious Freedom Restoration Act another? argument for another time So now here's another question that I ask first-year law students If the states repealed the First Amendment Congress shall make no law abridging the freedom of speech. Do we still have the freedom of speech? And it's under what theory? Under positivism we don't because the lawgiver is the law is what the lawgiver says it is and if the states repealed it and Follow the right procedures when they repealed it and they ratified the repeal and promulgated the repeal there is no freedom of speech But if speech comes from our humanity if it's a natural right if it's inalienable as Jefferson argued Then it doesn't matter what the positivists say about it Doesn't matter what the tyranny of the majority says about it because we still have that right because it comes from our humanity And it's inalienable. So what I've attempted to do in the past 35 minutes is to give you about five or six weeks of a second or third year class on jurisprudence which presumes that you've already taken constitutional law Which means you've already studied the 140 or 50 most important Supreme Court Opinion so now you can go out and tell everybody not only do you know about footnote for and caroline products But you had this quick 35-minute version of this advanced course which presumed everything else and I know it all sunk in So where does this leave us? Well because there is a way for the government even to get in here Even what's in here is not inalienable only when judges have True courage to stop the government when it wants to interfere with our personal liberties Will this have any meaning? Because if the government has any way To attack freedom it will it hates freedom it fears freedom because freedom is a resistance to it All these people take this oath to uphold the Constitution and to uphold the laws of the land one of the laws of the land the first law of the land It's the Declaration of Independence which calls these Inalienable so It's not a happy story what has happened to our rights. I still get to say this stuff We still get to say it Mises exists the rock will exist We can still make all these arguments about the government without fear at least at this point being arrested from hate For making the arguments and in fact the Roberts Court the current Supreme Court has been Surprisingly good on the freedom of speech by invalidating Prosecutions even for the most horrendous horrific speech that only a madman would want to articulate and would want to listen to the court has stopped the government from Interfering with it because the government couldn't meet the the strict scrutiny test You know with the famous Letter writing between Thomas Jefferson and John Adams they were letters to each other took three or four months To get there but in one of those letters Jefferson predicts to Adams that in the long March of history Freedom will be diminished And government will be increased. I can't imagine what Jefferson would think if he came back today And saw what what the government has has done to us And yet we take for granted the primacy of the individual You try and defend that on television and they want to draw and quarter you what could be more Defensible than the primacy and the worth of the individual But we are so inculcated to Accepting authority Many of us are the product of government schools my god. I called public schools Government schools on a place like Fox News. I thought I was going to be taken off there again They didn't they didn't it was very easy to demonstrate But it's a government school, but they don't like to use that word and rather call it a Public school. I thought Tom and his talk the other night or last night was going to tell a Rothbard story about you were Seated at home. It's a comfortable evening all of a sudden There's a knock at the door guy shows up. He's got a gun Go what the hell is this all about? Give me your money. I want to give it away in your name I'm gonna call the police This is the police This is the government. This is what they do. I mean, there are three economic models You know hard work Inheritance or the mafia model will just take it. Which one does the government use? if Freedom of economic activity. We're still in here The government couldn't do 90% of what it does. It couldn't even tax our incomes So it was very important to the progressives and the big government folks Not only that economic activity be sprung out of the box that a plate, but it be done. So Sereptitiously in a footnote that you have to read three or four times to figure out what the hell They are talking about So look you have to have a sense of humor my hero Thomas Moore joked with the executioner You know, I'm an old man. I need some help going up the scaffold But I think coming down I can shift on my own course when it came down. I had no head So I like to emphasize the humorous aspect of what I do. I may somebody may have heard this story, but I'm sitting in my office and this Screen on the phone goes off of the phone rings in its docile whose office is two doors away. What is he calling me for? Yes, Johnny. I gotta go on O'Reilly tonight. It's about drones and I don't know anything about drones. Can you take the hit? Me me can I take the hit can I go down there instead of you? Yeah, what are you crazy? I already have enough problems with O'Reilly. I'm gonna show up instead of you. Wow. I don't know listen I'm a consumer reporter. I understand the free market. I don't know anything about these drones in this killing I said well, John, would you let me send you some pieces that I've written about drones I send it to him Cursing back about an hour later. Gerini goes. Yeah. Yeah, I read it. I understand due process. I understand the president can't kill I understand the president can't wage war without a declaration of war They can't just send drones to kill people, but I have a bad feeling about this O'Reilly gig on drones Can you go instead of me John for the umpteenth time? I'm not going you're stuck with it. You do it. I Go home. I go to bed. I'm gonna watch O'Reilly at eight o'clock. I get up at 4 30 in the morning. I come in the next day He calls me up. He said you're not gonna believe what happened. What happened said I went down into the studio. No O'Reilly We know O'Reilly O'Reilly was before a live studio audience in Los Angeles like this John's face shows up on the flat screen about this size And so O'Reilly starts all right stassel. What's wrong with drones? Kills the bad guys saves the good guys half the time. We don't even know these bad guys are dead Yeah, Bill, but there's something called the Constitution and the Constitution protects life liberty and property Without due for taking life liberty and property without due process of law Constitution also says if the president wants to kill somebody he's got to charge him with a crime a capital crime Try him and convict him or the Congress has to declare war. Wait a minute stassel Did you get these arguments from Judge Napolitano? Well, as a matter of fact, I did Big deal He's not on the Supreme Court the best he can do is Fox and friends So look you have to have a sense of humor you gotta you know you can't be too thin-skinned in this business And you have to understand That the government hates and fears this no matter how many times it pledges to uphold it So I am happy to do for the next 20 minutes or so as The great Joe Salerno asked me to a sort of constitutional free-for-all I'm worried about David Gordon because he's the smartest man on the planet. I don't know what he's gonna ask But I'm happy to address any of this stuff. I think there are microphones around here if not, maybe you can What do you mean throw Mike This is actually a microphone and you throw it did drew Owens invent that thing Yes, ma'am I am sorry to tell you that after Chief Justice Stone died The law clerk who authored the opinion Revealed that he put it in there and nobody read it But everybody followed it Because it was a Supreme Court opinion It's really one of the worst dirty tricks ever pulled upon those of us who love human freedom That footnote for you gotta mention it to the next cocktail party Fortunately, I guess the battery is out for that so we have to Yes young man Does the 14th amendment apply to local governments as well? Yes Because local governments are under our system Municipal corporations authorized by the state so the state couldn't authorize one of its creatures to do anything that it can't do good question my question if there's something is a third possibility between the kind of Eternal in any of the rights coming out of humanity and human nature natural law and on the other hand a gun of government legislated set of laws and rights namely Historically evolved common law and the kind of the way would Hayek promote promote well common law So that's a terrific question common law was largely based on this Natural or tradition because there was so little of this at the time the common law was created In Great Britain Parliament didn't sit the way it sits today And it didn't enact legislation the way it did today Parliament sat from time to time whenever the king needed to impose a tax or Needed to do something that he thought he really couldn't do on his own common law is judge made law on the basis of natural principles of right and wrong Now those of us who believe that the natural law is the fountain and origin of our human freedom Deny the ability of the government to interfere with the natural law But the government has written laws including the Congress saying we can abrogate We can interfere with a natural right because in America Congress is the lawgiver it doesn't come from God or from Individual human decency and respect try the green box just for the seat of the mic work Mike check Go ahead while they're bringing this fellow the microphone Yes, so in in the entrance of discussing the balance between political theory and political practice You I'm I'm I don't know where you're going with bounce Because you mentioned the the impact of the small footnote. Yes, and the the Often times conservative criticism that conservatives fight for The final the final vision while liberals achieve one small goal after another How should we take in terms of development of policy? And it's especially Supreme Court decisions How should we look at the goals versus the individual steps? You know, I don't know how to answer that question. It's more of a question about I think political activism than it is about constitutional theory, but the first step would be to understand where our rights come from So that in states where judges are elected you can challenge them to see if they even understand that we have inalienable rights and in the federal system you can challenge senators who confirmed the appointments the confirmations of judges who have a demonstrated record of rejecting natural rights we call these First date amendments negative rights Because they say Congress shall not Congress shall not Congress shall not Positive rights are what the progressives love So when Joe Biden writes a piece in the Washington Post saying you have the right to health care He is arguing that that is a positive right that comes from somewhere in the constitution He totally confuses the concept of right a right is a claim And the claim comes from our Humanity health care like broccoli or a gym membership or a bottle of water is a good It's not a right So that's the type of argument that I would suggest making which is pretty easy for people to understand when you fight these political wars so Whenever like a lot of the times when Controversial like Supreme Court decisions kind of go against like traditional Constitutional conservative philosophy a lot of people say well not a lot of people a decent amount of people say You know the Supreme Court released like the Constitution just sort of like gives the Supreme Court only its authority over like federal matters because of like some I don't forget like some like lying in the Constitution says it applies to all things federally But I might have thought it's like on the other hand like if they did that I wonder if that applies to the bill lights as well, and that's kind of the thing So I was wondering how would how much do you think they think the Constitution applies federally versus like also can override state decisions potentially It would really take a long time to answer that in detail But if a state government interferes with a right that is protected by the Constitution Whether its source is natural law or Positivism then it is the duty of the federal courts to stop the state from Interfering with it. So the right to keep and bear arms is articulated in the Second Amendment. It's it's posited there it is written down But it is also a natural right because you have the right to defend yourself The state of New Jersey has made it where I live nearly impossible to keep and bear arms. That is a state Interference with a natural right that is protected in the federal Constitution because it's in the second It's in the second amendment under those circumstances It is not only the right it is the obligation of a federal judge to say is New Jersey Corrector as the person claiming the right to keep and bear arms correct Yes, I was gonna ask you what you thought of all the constitutional doctrines was the most Destructive to the Constitution perhaps the dormant Commerce Clause doctrine or field preemption Well the Commerce Clause which is the bulk of what we will be reading about and discussing in the class that I'm teaching is the Congress's favorite hook on which to hang its hat of regulation and some of the more absurd arguments that have been made to justify Federal interference with the free market have been made On the basis of the Commerce Clause so commerce Interstate commerce at the time the Constitution was written was defined as the movement of goods over interstate lines between merchants But Congress has reached into the movement of goods at any point as long as it's Rationally connected to the movement over interstate lines then it's moved into the condition Under which the goods were made and then the salaries the people who made the goods But the most absurd Commerce Clause case I've ever heard of to save this for the class, but since you asked it Is a challenge to the regulation of the salaries of window washers? Window washers who go up the side of skyscrapers in New York City So second circuit Court of Appeals the Court of Appeals right below the Supreme Court Said because the window washers would be tempted to turn around and look across the Hudson River Over an interstate line and see New Jersey Their salaries can be regulated by the Congress because it affects interstate commerce now. This is absurd But this is the length to which the courts have got the thing I took an oath to uphold this at one point in my life Sir. Oh, yes, sir with the green So in your lecture you referenced almost exclusively the Thomistic natural right which as far as natural right goes is the more or less Straightforward doctrine airversion. Yes. What is your opinion of the inegalitarian quality of? Classical natural right Do you think it has a place in liberal democracy? Do you think it can? Yes, and absolutely absolutely has a voice if you remember I Realize this is a mess. I can't even read it myself But I said there were a number of theories here. What you where are you young that I can't see okay But what you've articulated is is one of them Thomistic version is an easy one to understand and a relatively popular one amongst people that accept this But there are four or five of this there's even three or four different versions of st. Thomas Aquinas as well. I Mean Rothbard would have been closer to your view than to the Thomistic view Rothbard would have also accepted the concept of Human dignity is equal to all persons Because we are the most important rational beings on the planet. That is as much a foundation for this as is God the father son and holy ghost not holy spirit John holy ghost You gotta be an old-time Catholic to get that one sir. Yes, sir Oh boy, you know I love when the locals resist the feds It would really depend if you want to get a little in the weeds It would depend upon the circumstances under which the cities accepted the funds So one of the cases that we will discuss later this week has to do with the federal government bribing the states We will give you a hundred million dollars to Repave all the federal highways in your state if you will lower the speed limit to 55 miles an hour Every state but South Dakota accepted the money South Dakota took the money and refused to lower the speed limit Basically said who the heck is the federal government to bribe us and the Supreme Court said you know what you accepted it under those terms You were free to reject it. You accepted it. Therefore. You have to lower the speed limit What left-wing? Pinko nut job president signed that into law Ronald Reagan So the temptation of Congress to regulate in areas not given to it under the Constitution by bribing the states Purchasing the remanded if you went to Montgomery, Alabama said here's a hundred million dollars change the law you'd leave in handcuffs But the Congress has written laws that lets it do it So back to sanctuary cities if the city of Chicago gets a billion dollars to fund its government schools Where they try and turn a pig's ear into a silk person they fail and the condition of accepting that money is cooperating with federal immigration authorities then they have to cooperate But those conditions are not yet in the statutes because Trump can't get anything through the Congress Welcome give them the green thing. Oh I will get back to you get back You touched on it briefly a little bit talking about the Supreme Court claiming the power to take things out and put things back in the box They have never put something back in that they've taken out I was I was gonna ask and the only one they have taken out is Economic opportunity the others that they put in are still in there. I don't know if that's gonna change your question Well, I was just wondering in your understanding like what's the what's the method for doing that? Like it seems more that this philosophy is built into the Constitution rather than Articulated within so what would be your understanding of the proper methodology to accomplish that? That's a good question because look same-sex marriage is in this box It's only been in there for three years The inconceivable that it would have been in there 20 or 30 years ago So even though Supreme Court justices don't run for office They do read newspapers and they follow election returns and they they are familiar with cultural trends and where and the direction That society is going one of Justice Scalia's arguments against the box was who the heck are nine unelected Accountable black-robed lawyers calling themselves Supreme Court justices to decide what goes in the box if you're gonna have the box Then Congress should decide what goes in there. That was Justice Scalia's argument Justice Sotomayor when I interrogated her said Congress is gonna decide what goes in that box Congress is only interested in one thing Getting reelected They'll put something in that box that they think it'll help them get reelected They'll take it out of the box if they think it'll help them get Reelected and the one time that Congress who asked the question so I can okay The one time Congress did try and put something in the box the court took it out had to do with The standard of review for Interference with the free exercise of religion somebody else who had the box okay So in lies the government told you you wrote about a Supreme Court case I've really like resonated with me. It was Herrera v. Collins. I was wondering if you could talk about that with the audience a little bit Well Herrera v. Collins is a case involving the execution of the known innocent the Execution of the known is one of the worst Supreme Court opinions in history because The proper procedures had been followed in his trial and in his appeal So if you visit the Supreme Court You see emblazoned in huge letters in the outside of the court building equal justice under law Meaning even if the law is horrific Even if the ultimate outcome is unjust if it is legally commanded by the law We will follow us the worst opinion that Chief Justice Rehnquist ever wrote in my opinion and the worst opinion in the modern era Mr. Herrera is executed Even though he was innocent because they couldn't find any defect in the procedure that brought him to the execution chamber. I wrote extensively About that. There's a lot of you Google has a lot of literature on it. There are this case cuts across Ideological lines there are progressives who condemn it. There are liberals who condemn it. There are conservatives who condemn it Sir Yes Hi, you spoke of natural law. So that is of course the right to person and the right to property So under I guess the current American political climate should people be much more concerned with Their personal liberty further being infringed or their economic liberty further being infringed Well, the infringement of economic liberty is rampant and easy because it's not in the box Most personal liberties are in the box meaning Congress has to meet the strict scrutiny standard has to show a compelling state interest And that it's addressing that interest by the least restrictive alternative when it wants to regulate economic activity It only has to show a rational basis, which really means any rational basis So lawyers will always come up with some rational basis to to justify it somebody else This is unbelievable Of the upcoming Supreme Court cases, are there any in particular that you're worried about the rulings on and if so why? You know, I have not looked and they have not yet announced The exception of one case, which is the challenge to President Trump's travel ban What cases they're going to address? In October, but I am always worried When the government interferes with individual liberty always worried I mean not everybody on that court Believes in the inalienability of human liberty the way we do Justice Gorsuch does justice Thomas does even the great Nino Scalia did not believe in this Occasionally he'd come down here and call it pre-political, but it would always give the government the last say when it comes to when it comes to regulating it so Okay, one last question Do I know you from last year? Oh, all right, you're welcome welcome back Okay, so okay where Where where did the idea of strict scrutiny come from since obviously it was like Congress shall make no law X where did the strict scrutiny? standard come from footnote for caroline products Something nobody read understood until after the author of the case was dead basically said we will apply strict scrutiny to Personal liberties traditionally associated with the first aid amendments to the Bill of Rights Which we sometimes call Fundamental liberties, but we will not apply it to economic liberties. That is where And if you have the class with me caroline products is one of the case we cases we read That's where you that's where you see it So look you are all here for a purpose this is for me the happiest Week of the year. I just got back from two fantastic weeks in Italy. I would rather have been here Because here is where these great ideas that underlie and The bad ideas that undermine human liberty are articulated in a fair free open and hospitable way I Don't know where all of this is going to end. I Said to Lou and we're in the hallway. I see dark clouds coming Not just because of the missteps of the president and and the Republicans But because Jefferson was right because government grows and Liberty is diminished Now I'm 67 years old. I know I don't look and act at John Denson, but I'm 67 years old. I Expect that I will die faithful To my first principles which are all of yours in my bed Surrounded by people that love me Some of you may die faithful to first principles in a government prison and Some of you may die faithful the first principles in a government town square to the sound of a government trumpet blaring When the time comes to make those awful decisions You will know what to do Because freedom lies in the human heart and while the heart beats No government No idea no mass movement can successfully take it away But it must do more than just lie there. Thank you. God bless you looking forward to the week with you