Martial Law and Lockdowns: An Online Seminar with Judge Andrew P. Napolitano

hello everybody welcome to our webinar today from the mises institute in auburn alabama we are joined by our great friend actually someone i've known for several years judge andrew napolitano live from his home today not at fox news so great to see you judge thank you jeff it's good to be with you and all the wonderful folks that are joining us yeah you know it's interesting we've known each other a little while and i don't think either one of us could have imagined the the state of lawlessness that exists in america today and i mean both on the public and private level well on the public level we have governors who have enacted as if they were law nothing more than recommendations but they have used the power of the police to enforce these recommendations as if they were law that of course implicates a number of violations it's a violation of the separation of powers because it has a what reports to be a law written by the executive branch which is the governor uh that violates the guarantee clause of the constitution which guarantees a republican lowercase r form of government meaning laws are only written by a representative body in all states but one a a bicameral uh legislature uh it also violates the first amendment because it restrains your ability to move your ability to assemble your ability to worship and it violates due process in the 14th amendment because it is taking away liberty without a trial and without proving fault so the the governors on their own not the president not the congress the 50 state governors and many mayors of large cities have on their own caused catastrophic damage to human liberty and prosperity flip side of that of course is that those in the streets who initially were expressing a political view in a peaceful way uh lamenting a horrific torture and murder and complaining about police excess and brutality well-known well-documented and essentially unchecked for 100 years uh suddenly have been motivated to commit violence on their own so the same governors that told people they couldn't assemble initially praised the assemblies now have to use the police to resist those assemblies the president of course has added to this uh by using extreme force to clear lafayette park so that he could walk from the white house to a church for a photo op stunt which is a serious uh violation of the civil liberties of those who were peaceably assembled in the park so we have a mess we have anarchy and tyranny at the same time and theoretically theoretically we still have a constitution but very few people none of the very few of these cases have gone to the courts and very few people in power are acting as if we still have a constitution it's interesting do you remember the same francis phrase anarcho-tyranny yes that's what we've got isn't it well yes so we sort of have two things going on first of all we have the covet 19 situation and now we have the civil unrest situation relating to the death of george floyd and with respect to those two things we have both federal and state action so let's start with the governors at least ostensibly where do governors and mayors presumably derive their authority to shut things down to institute business lockdowns curfews uh social distancing all these rules where would they tell you judge that their authority to issue these orders without a legislature come from well their authority comes from the power of a gun which the police carry but they wouldn't tell you that so the answer to your question is they would tell you or us that the powers reserved to the states under the tenth amendment which the supreme court has said is the power to regulate for health safety welfare and morality uh includes the power to keep the public safe they would also tell you that most state legislatures have enacted emergency statutes that basically let governors do what they want in order to address an emergency whether it's chris christie in new jersey arresting addressing superstorm sandy or whether it's governor cuomo in albany addressing the pandemic but no legislature can do the following no legislature can transfer to the governor the ability to write law because that would violate the guarantee clause of the constitution which says only legislatures can enact law and no legislature can enact any law on its own that violates the bill of rights because with the exception of the amount of bail all aspects of the bill of rights are now applicable to the states so if a state legislature of new jersey for example said to governor murphy here you have the authority to write whatever rules you want violates the guarantee clause if they said to governor murphy okay you have the authority to shut the state down and lock everybody else up in their homes that violates the provisions of the constitution that i addressed earlier uh freedom of assembly freedom of worship uh freedom to travel so even though the governors will make these arguments they are very flimsy some governors have relied on a supreme court opinion from around 1905 or 1907 called jacobson versus massachusetts in which the supreme court without citing any authority whatsoever authorized the state of massachusetts to enforce mandatory uh vaccines for smallpox now this is uh 115 years ago and there was dispute about whether or not the vaccines even worked that was legislation enacted by the legislature of the state of massachusetts it was not a command by the governor nevertheless since then there have been at least three or four depending upon how you count them supreme court decisions that have utterly undermined that jurisprudence and that have given you control over your own body so when governors or prosecutors rely on this jacobson versus massachusetts quite frankly they don't know what they're talking about and haven't done their homework judge i got to say that statement i think it was on tucker carlson's show by governor phil murphy that was pretty incredible i know you alluded to it in one of your articles where he said that's above my pay grade i mean these guys aren't even really trying at this point right well you know uh governor murphy actually repeated it in a different way so when my colleague tucker carlson they had me on the next day to sort of uh address this from from a constitutional point of view but tucker cross had just very um innocently said by the way did you where do you get the authority to nullify the bill of rights and and i think the governor fairness them thought it was being funny but it wasn't a joke uh and it pro ex it reveals profound ignorance and you're right jeff he did say literally the bill of rights is above my pay grade uh last week or actually earlier this week when the governor permitted 2500 people to assemble in front of newark city hall without social distancing or masks people peacefully there angry expressing outrage at the torture and death of george floyd as they have every right to do he cheered the mama and when someone said to him well wait a minute you blocked 25 people from gathering in a small town in northwest new jersey would happen to be the town where i live because they wanted to criticize you and your closures and you permitted 2500 people to gather uh in newark how do you uh rectify that he said oh well the gathering in newark was about um uh was about human freedom and the gathering in northwest new jersey was about opening nail salons oh so one is protected at one issue he can't make that determination the government cannot make an a value judgment of the value of speech and protect that which it believes is valuable and leave unprotected that which it believes is in the is not valuable that's one of the reasons that we have a first amendment so he totally and utterly doesn't understand or misunderstands the bill of rights well let's talk about the feds and trump whether you have coveted lockdowns whether you have riots in a city does trump have any authority to send federal troops into a particular state without the governor's permission all right so there are two statutes on this one is 1807 and one is 1876 and they both have been amended the 1807 one is the insurrection act the insurrection act was written to address posthumously george washington riding on a horse with alexander hamilton next to him and 150 cavalry with him to put down a rebellion in western pennsylvania known as the whiskey rebellion where a bunch of farmers were making booze and they refused to pay attacks to the feds because it wasn't authorized under the constitution it still isn't into the state of uh pennsylvania so the the insurrection act was written after washington was no longer president i think he was dead by then justify that it permits the president of the united states to lead inconceivable today or to call out uh the military whenever there is an insurrection the 1876 uh popularly called possibitatus act was written to rid the southern states of the occupation of the united states army from the in the ten years following the war between the states and it obviously amends it trumps lowercase t the earlier statute and it prohibits absolutely the use of the united states military for law enforcement purposes except in the case of invasion or rebellion now we haven't been invaded in 2006 uh congress enacted a statute that suspended the writ of habeas corpus for anybody that george bush arrested and sent to guantanamo bay the supreme court invalidated the statute and said under the constitution congress can only suspend the writ of habeas corpus in the case of invasion or rebellion and then it was forced to define rebellion and that definition is a state of affairs natural super storm stan sandy's superstorm sandy or man-made well riots in the streets of such an extent that the state and federal courts cannot sit and hear cases so the president can respond to a request from a governor to send the military into the state if and only if both the state and federal courts cannot sit in those states jeff and my dear friends listening the federal courts in new york city which were three blocks from ground zero were able to sit in the week of 9 11. they are sitting today in every state in the union so would trump need authorization from congress under article 1 section 8 to provide for an insurrection or rebellion no congress cannot uh interpret the constitution only in the courts can and they interpret it as recently as this 2006 uh case that i mentioned to you it's a sandra day o'connor opinion um okay their congress cannot authorize the president to wage war on or use the american military on the american people and what happened in lafayette park was a massive assault by the federal government on innocent people lawfully present engaging in constitutionally protected activity ordered by of all people not the military the attorney general i don't know where the eternal general got the authority to command the military but in trump's america that just happened right before our eyes well you know what seems unusual here is we have this blurring of the distinction between state guards and the national guard so when trump says he's going to send the national guard in or troops or something is he talking about federal soldiers well i don't know what he's talking about the troops that he used in uh lafayette park earlier this week were not national guard they were regular u.s army from fort bragg uh north carolina now there have been instances of governors deploying strike that federalizing the national guard and they have all been cases where federal judges have heard cases and issued orders and state authorities in the states where the federal judges were located refused to honor those orders eisenhower in 1957 involving the desegregation of little rock high school in little rock arkansas in jfk in 1962 involving the desegregation of the university of mississippi in both of those cases federal judges ordered the desegregation and in both of those cases the governors used state police and the national guard to resist u.s marshals who were attempting to effectuate the orders what eisenhower did in 57 and jfk did in 62 was to federalize the national guard so at 10 o'clock in the morning the national guard was under the command of the governors at 10 after 10 it was under the command of the president he can do that for a bonafide federal purpose which is in this case the limited purpose of serving an order on the schools which had been barricaded by the state authority so that the u.s marshals couldn't serve the order and then the troops were returned to the jurisdiction of their governors but today don't you think national guards or state guards are almost de facto additional federal troops are they really really under the control of their governors at this point well the president can't call them out i mean the president can't activate them but if a governor activates them the president can federalize them that's the lesson of 57 uh and 62. in my own view uh the president should not have the authority to federalize them but that's just me it is clear uh that the courts have authorized this and quite frankly there's language in the constitution uh in which that authority is ground so when it comes to some of the government actions we've seen over the last couple months whether it's a club business closure or a quarantine measure for covid whether it's a curfew or a stand down measure for the recent civil unrest where does due process in the constitution comes in i mean you've written about how there needs to be a level of specificity with respect to the harm with respect to the actors and some ability to respond in you know either in a tribunal or at least a regulatory hearing so we don't seem to see any of this specificity or due process happening we seem to see just sort of blanket decisions by governors or mayors and no due process whatsoever all right so there are two views on this uh the lawyers in in the audience this afternoon know this that there's often a majority view of a particular law or doctrine and a minority view the majority view lamentably is that when the government wants to infringe upon a fundamental liberty to be defined in the moment the government can do so if it can pass the strict scrutiny test and strict scrutiny requires that the government is serving a compelling state interest and it is doing so by the least restrictive alternative so i would argue before we even get to the minority view that the governors aren't even able to pass this majority big government version of due process because quarantining the healthy is hardly the least restrictive alternative to prevent the spread of the disease now the minority view the minority view is that our rights come from our humanity and the government can only interfere with those rights when we have interfered with somebody else's right that is the literal due process meaning the government would have to hold a trial and prove fault before it could uh deprive anybody of due process the chief justice does not john roberts does not accept the minority view he accepts the majority view he said so as recently as earlier this week back to what is a fundamental liberty uh the supreme court uh in recent years i'd say the past 20 or 30 years has preferred not to call liberties fundamental it's preferred to call them substantive so substantive due process it's a fancy phrase for natural right fundamental liberty uh to to the big government folks it's liberties that are expressly articulated in the bill of rights to those who believe that our rights come from our humanity it's the rights that you had in nature it's your natural rights the government cannot interfere with any of those absent due process so is going to work in operating your business is that a fundamental liberty or is that just under supreme court jurisprudence regrettably no but under the natural law it absolutely is your right to engage in the free exchange of a good or service is however if your work involves interstate commerce there is a supreme court jurisprudence that says the right to engage in interstate commerce is a fundamental liberty almost everybody's work in some respect involves interstate commerce whether you cross an interstate border or you sell a border service in one state that is purchased and used in another well so here's the devil's advocate argument even within the state you know you look at a governor and say where there's a pandemic and it can spread very quickly and i don't have the ability to bring specific people before a court of law and specify the level of harm and apply uh the strict scrutiny rule i just have to issue an order because that's it's just not practical in mass to provide due process to the whole citizenry let's say the state well then that governor is not taking seriously his or her oath to uphold the constitution because the constitution could not be clear the concept of a civil commitment you will stay home and knock him out of your house without any thought has been condemned since the days of magna carta in the 13th century there is simply no uh articulable basis consistent with western values much less consistent uh with the constitution now you know i've written extensively about the ninth amendment this was a a point of pride for james madison the ninth amendment basically says just because we've enumerated rights in the first eight does not mean that there aren't other rights retained by the people we all know that it would be impossible to list all the rights that people have so the ninth amendment is the natural law embedded uh into the constitution so your right to go out of your house and your right to buy a newspaper uh even though not expressly articulated in the first aid is clearly protected under the ninth and we've just gotten the newest fifth volume of murray rothbard's conceived in liberty where he talks about the ninth amendment and perhaps in legal circles he doesn't get the due he ought to get as a as a natural law scholar well i am a big fan of uh murray rothbard as i suspect many people listening to us are now he was a brilliant and gifted uh thinker uh who never wavered from the natural rights of the individual in the primacy of the individual uh over the state um i wrote an introduction uh to that volume and of course i had some emphasis on the in my introduction uh on the ninth amendment uh the debates uh over the bill of rights were presided over by the same person who was the scrivener at the constitutional convention james madison he wrote the constitution and he wrote the bill of rights the original bill of rights had 12 amendments to it the states accepted 3 through 12 and then renumbered them one through ten the two that they did not accept have since been added to the constitution uh and they had to do with uh the the manner in which congress gives itself uh raises so it's irrelevant to this point but the debates in the house of representatives in the committee over which james madison presided uh were fascinating and they basically said how can we protect rights that are not listed here and madison came up with the ninth now again if you read the language the opening line of the first amendment doesn't say government shall make no law it says congress shall make no law in fact during world war one when woodrow wilson sent the precursor to the fbi to arrest people who were reciting the declaration of independence outside draft offices right here in new jersey his defense to that was well i'm not bound by the first amendment because only congress is bound by the first amendment today of course you could substitute the word congress for no government shall infringe upon and then the rights are uh articulated in there madison either didn't foresee or couldn't muster the votes to restrain the states from violating the bill of rights in large measure because slavery was lawful at the time since uh 1791 in half the states but rothbard thinks the ninth amendment applies to states well the language in the ninth amendment is so broad i thought i had a copy of it here i'm not going to have to go uh from my memory the the rights not enumerated shall not be disparaged so that is a command shall not be disparaged and it's a command rothbard was right it's a command to all of government the word congress does not appear in there whatsoever the courts did not extrapolate the ninth amendment to restrain the states until after the 14th amendment was added in 1868 but professor rothbard is correct the language is broad enough that many of the people who supported it understood that this is going to restrain the states as well some of my states rights colleagues many of whom are libertarian sometimes come down on me for arguing that the first nine amendments pertain to the states they have to the states can cause as much harm to human liberty as the federal government can the states ran slavery the feds didn't states have brought about this lockdown the feds haven't well we've got to give a shout out to our friend mike mahari from the 10th amendment center on this particular issue here i guess what i want to ask you is with respect to you know harms by states are the 9th and 10th amendments there's no jurisprudence going on are they dead letters is there any action whatsoever in court there has been very little on the ninth amendment my colleague and dear friend professor randy barnett at georgetown university law center is the countries and therefore the world's foremost authority uh on the ninth amendment he has a book written on it and it's brilliant and is very consistent with uh with natural rights as for the tenth the tenth was a dead letter meaning the the supreme court regarded the 10th which basically says powers not delegated uh to the states excuse me to the federal government are retained to the states or to the people the supreme court for years considered that just a truism of course that which was not uh delegated was retained and in those debates that i talked about with madison there was an effort by madison to insert the word expressly in there oh how i wish it was once being issued for once being interviewed for a federal judgeship and they said to me if you could change anything in the constitution what would it be and i said well i would define interstate commerce as the movement of goods across interstate lines from one merchant to another that would have clipped congress's wings and i would have put the word expressly back in the tent so madison has the word expressly in there and it gets a majority vote but under the rules it required a two-thirds vote he didn't have two-thirds vote so expressly is not in there however um in around 2000 in a now famous case called united states versus lopez uh mr lopez brought a a handgun within a thousand feet of a school which was prohibited under texas law and under federal law typical of the feds they said uh we'll try this case you leave them alone texas we'll try them and we'll send them away for a long time they never imagined that the supreme court would invalidate the statute but you can't carry a gun within a thousand feet of a school he validated the federal statute because the supreme court found that it had absolutely nothing whatsoever to do with commerce and it impaired the ability of the states to provide for safety within the states so there's a little bit of life uh left in the 10th amendment from a very ugly experience of a kid with a gun in his pocket within a thousand feet of school but we are seeing some de facto federalism happening aren't we i mean we have different reactions to covid we have different governors doing different things even prior to covet and now the this civil unrest we had just in the age of trump we had california having sanctuary cities etc i mean as america seems to get more divided doesn't that provide an opportunity for federalism to reassert itself hopefully you know for years it was uh libertarians who wanted to see seed from the union do you remember that movement to bring uh 50 or 60 000 libertarians to new hampshire and to capture the new hampshire legislature and then to enact some resolution reporting to secede uh peacefully and now that trump is in the white house it's places like california uh that are that are stirring the pot about uh wanting to see seed i applaud sanctuary cities uh i applaud uh local governments making their own decisions in favor of human freedom uh and telling the feds to go take a hike well do you think that this is going to intensify if trump somehow manages to get reelected i mean this country i think we'll see riots if trump manages to get reelected but i think we'll also see you know substantial efforts by deep blue states to go their own way well it depends on what they want to go their own way on i mean i can't imagine congress letting california go with all of the money congress takes from people that live in california that's just fanciful and it wouldn't let new hampshire go either for that or for a point of pride uh interestingly the state of vermont and the state of texas each of which were independent countries before they joined the union you ready for this expressly reserved the right to leave texas reserved the right to break itself into five states now it has never exercised that right nor is that exercise the right to leave nora's vermont i don't know what would happen if they tried to uh to exercise that right i think you are correct jeff if it doesn't appear likely today but anything could happen if a trump is re-elected i would imagine that the more liberal states uh would do everything they can uh to resist what he is trying to accomplish and again i don't know if this is harry truman trying to seize the steel mills after congress said no or if trump would have congress behind him it's one thing for the president to do something on his own like using tear gas on innocent americans so they can have a photo op in front of a church it's another thing for him to enforce a statute that congress has enacted that interferes with uh with people's freedom or even pro even sound public policy so it depends on whether trump is acting alone or with congress well right now everybody's of course talking about police brutality so let's bring up the hot topic of the day which is qualified immunity supreme court doctrine about 50 years old we've got this harlow case which gives us the current test i guess that case is from the 1980s you know give us your thoughts on this how do we get to this state and and is there any defensible rationale for allowing not just police officers but government employees in general to be personally immune from liability well in my view the earth and i've been ranting and raving against uh qualified immunity since i was a trial judge in new jersey 30 years ago trying criminal cases to seeing what the cops did and got away with so i am i am clearly on the record as opposed to it the origins of it are police unions and the power that police unions have and the power that they have over legislators to intimidate legislators into voting in favor of qualified immunity qualified immunity for police uh basically means if you are wearing your uniform and wearing a badge and enforcing a law and you happen to harm someone you are immune from personal liability your liability is indemnified by the government that employs you if we removed qualified immunity and if we remove the ability of governments to indemnify the police stated differently if the police were personally liable for the harm they caused to innocence whether it's george floyd being tortured for eight minutes and 46 seconds and eventually killed or whether it's two cops in uh buffalo new york pushing to the ground a 75 year old and cracking his head and just leaving him while he's bleeding there whatever it is the cops would know that they could lose their their homes and their savings if they had done that today that is inconceivable you know unless they weren't really cops unless they they were just wearing a costume and they qualified for them there is absolute immunity which is enjoyed by the president and is enjoyed by federal and state judges but we're talking about qualified immunity you must qualify for it by being a bona fide police officer on a bona fide police mission or endeavor and then these cops know because they're taught this day one in the police academy they can get away with whatever they want well what about non-police state actors what about a mayor let's say somebody wants to sue their mayor because he or she shut down all the restaurants and so the person suffered a business loss from having their restaurant shut down and thinks that the order shutting them down was illegal under the state constitution or the federal constitution i mean is the same kind of immunity generally apply to a mayor yes so you can sue and you might prevail if you could argue that the mayor who was the mayor of a municipality in a municipality as a corporation authorized by the state and its powers are determined by the state and the constitution expressly prohibits the states from interfering with contracts if you could make that argument uh to a court you could win but the municipalities insurance carrier or or treasury if they have one would be used to compensate you not the mayor herself or the mayor himself because the mayors enjoy this qualified immunity as well i'll give you another example of qualified immunity very very hot topic today the prosecution of general michael flynn now whatever you think of trump and whatever you think of flynn whatever you think of the fbi um he was uh more or less trapped into uh talking to the fbi they already knew what he had said to the russian ambassador they had a transcript of the conversation uh in their hands whether he lied to them or not you know was debatable but he did plead uh guilty to the line however last month the justice department acknowledged that there was no good faith basis for his prosecution now that's just not an academic acknowledgement why well if you're prosecuted by the feds and the jury finds you not guilty you can't sue the prosecutors who prosecuted you or the fbi who investigated you because they enjoyed qualified immunity but if the doj says publicly there was no good faith basis for the prosecution which is what they said about general flynn that removes qualified immunity from the prosecutors and the fbi agent stated differently jim comey and company or whoever dispatched those fbi agents to the white house on the 24th of january in 2017 to interrogate uh general flynn do not have any immunity or the consequences of what the of the harm they caused what harm did they cause try 6.7 million 6.7 million thus far in legal fees well what about governors though give us at least hypothetically what what's the cause of action somebody might bring against some of these state governors for which i would like to see for their coveted shutdowns i'd love to see that happen is that pie in the sky uh the one that reached the supreme court uh two days ago they actually released their opinion on how they did this they released their opinion 3 48 in the morning on tuesday morning uh it was a it was an application for emergent relief now when the supreme court rules on emergent relief it doesn't rule on the merits it just rules on whether or not if it ruled on the merits it was likely to prevail and that was against uh governor gavin newsom in california over the opening of churches so governor newsom ordered that houses of worship in california can open but they can only hold 25 percent of their normal capacity or a hundred people uh whichever is less there are two cathedrals in california that hold three thousand people and so the argument was this is arbitrary capricious unreasonable and discriminatory you're allowing 150 people in walmart you're allowing 100 people in shop right you're allowing 50 people to mercedes-benz dealership and you won't allow 50 of the people to sit in a church and the supreme court chief justice uh roberts siding with the four liberal members of the court basically said that's a health pandemic he can do what he wants as long as it's not permanent that's terrible horrific jurisprudence it's a suit against a governor based upon an expressly guaranteed constitutional fundamental substantive natural right the free exercise of religion and the court thumbed its nose at that charge well i just wonder when a business is shut down not only do you have the loss of income but the business itself might become devalued and worthless as a result i wonder if there's an analogy here to a regulatory takings claim against your government if if you're a restaurant owner in gavin newsom's california i mean i just don't know where the relief's going to come from other than you know these 1200 checks from the federal government okay so if the if the state or federal government wants property that's my gina in the background she's hungry i thought she was asleep gina daddy's here uh if the state or federal government wants property it can take it but it's got to be for a bona fide public purpose and for just uh compensation right regulatory taking is what occurs when the state exercises its regulatory authority and diminishes the value of the asset whether it is a physical asset like real estate or whether it's an incorporeal asset like the good will of a business the courts are loathe to grant redress for regulatory uh takings because they think it would bankrupt the government by requiring the government to pay uh for every regulatory uh taking so that's the way the government gets around its fifth amendment obligation to pay fair market value for when it takes something by saying we didn't take it we just regulated it and the regulation was for the common good those cases uh have not yet been filed nor can they be filed until the pandemic is over or the lockdown orders i hate to use that word it's a word derived from what happens in a prison when there's a riot now we use it to define our state of civil and supposedly and once free society but whatever you call what we're going through now is over um would have to happen first so there's a measure of loss the value of the business on march 1 2020 versus the value of the business on i'll just throw out a date september 1 2020. you'll see those lawsuits my prediction is the regulatory mindset which exists in the judiciary will prevail well speaking of police i know there are some some supreme court cases which basically lay out that they have no duty to protect you per se they're not legally responsible for coming to your aid if you if your shops being vandalized in manhattan for example yes that is correct well we we know from just watching the television the police cannot protect private property uh the big government has emasculated our own ability to protect our own private property particularly in states like new jersey not alabama where you are but new jersey uh but the cases are very clear the police have no duty to protect life or property they haven't added liberty to that of course the police are the greatest violators of liberty on the planet theoretically they have a duty to protect liberty so when it comes to that property i think you know we'd all agree to a right of self-defense and that we can use deadly force in our homes it's a little different let's say when you drive down to your shop which is being looted and shoot someone over a matter of property when when perhaps that person is not coming after you or posing any risk to you personally your body so talk a little bit we'll talk about proportionality and and protection of property using you know what what level of force would be appropriate in natural law mindset well in a natural law mindset whatever level of force is necessary to protect the property would be appropriate but in the late 60s and early 70s uh the states engaged in a pretty much unified louisiana was a few years behind the other 49 in revising uh criminal law and those provisions limited the use of deadly force to repel an invader to your home now there's been a little bit of wiggle room in the stand your ground states like uh florida but for the most part you cannot use deadly force you can't shoot somebody uh who's stealing a bottle of bourbon from your liquor store or a flat screen from your appliance store you could in the 40s and 50s and early 60s but you cannot now you either have to do what lord and taylor did in new york hire ex-cops or very big brutish guys who are allowed to carry guns and who have german shepherds with them and nobody touched lord and taylor cost them a lot of money but nobody touched made the police happy they didn't have to go there you either have to do that or risk being prosecuted for using too much force so the the the new statutes require proportionality you can only use deadly force if deadly force is being used on you you can use deadly force protect property if deadly force is being used to assault property now you could argue a brick through a plate glass window is deadly force you could certainly argue a molotov cocktail following on the heels of the brick is deadly force the courts have not resolved those cases but i think you'd have a strong argument if you use deadly force on the person certainly who threw the molotov cocktail i'm not sure about the person who threw the brick when i say i'm not sure i'm not sure how the courts would go i'm certainly sure about your rights to do this under the natural law but you know you could fit on one hand the judges who'd accept the natural law argument you wouldn't use all your fingers but here's the thing if those lord and taylor security guards had shot a guy who was throwing a brick through the plate glass window so he could get in there and loot the lord and taylor merchandise i guarantee the security guards would find themselves subject to a civil suit well even worse they'd be arrested if the guy died they'd be arrested for homicide and if he didn't die they'd be arrested for aggravated assault and clearly for a civil suit the civil suit does not worry me uh because the the cost of it would be borne by lord and taylor's insurance carrier or lord and taylor would indemnify the company that the security guard works for and it's hard for me to imagine a manhattan jury not doing the right thing but stranger things have happened what would offend me greatly is someone being prosecuted for using proportionate uh force to protect either their own property or the property they were hired to protect i mean that if that right is stripped then we don't have private property if you can't protect the property the essence of property is the right to exclude if you can't exclude an invader from your property then you don't really own it so where do you think this takes us what's how would natural law address this i think we're going to see more private security in the united states we're even hearing some calls for defunding police departments all together police agencies mostly just respond to crime they don't do much in the way of deterrence or prevention they don't act like insurance companies they don't act like private security guys at places like disney world so what what does the future hold and what what might be the bright spots here well you know it's hard for me to to to predict uh the future i mean i don't know if the country is moving left or in some populist neocon direction it's hard even even though i know the president and sometimes i'm privileged to speak with him on the phone whether it's a happy or an acrimonious call i can't always figure out what his thinking is but i'll tell you our uh mises colleague edward peter stringham s-t-r-i-n-g-h-a-m who's a professor at the university of hartford has written a brilliant book on private policing guess which city in america has private policing and in the neighborhood i don't have it everywhere but in the neighborhoods where they have it there is zero crime the people's republic of san francisco actually has private police it's a fascinating book that professor stringham uh ed as most of us know him since he still has a baby face he looks like he's a student rather than a professor uh has written about surely and this is pure rothbardian uh a private security force either paid for by the landowner or the landowners in in concert with each other or their insurance carrier would have a legal duty to perform the service that they were paid to perform so unlike the police who don't have the legal obligation to protect property a private police force would have the duty to protect property because they would have signed a contract assuming the duty in return for being paid to do so i would love to see that murray and heaven would be ecstatic to see that but i don't know that it's going to come about i mean it's the year is 2020 uh we've had big governments for big government for 100 years since senator wardro wilson i think a lot of people listening to us to now now probably agree with what i'm saying but we are an infinitesimal minority uh in the country today so i don't know which way it's going to go i i fear the worst i fear that nobody takes the constitution seriously not the president not congress not governors not state legislatures not federal judges not state judges with some exceptions rand paul ron paul mike lee justin amash uh thomas massey there are exceptions everywhere there's a guy in new jersey a senator um uh mike dorsey he's the justin amash of the new jersey state senate but he's a minority of one um i mean taxes are going to go up regulation is going to go up life is going to become less bearable and less free in my view unless as jefferson said and i don't mean this literally the blood of patriots should be spilled on the tree of revolution at least once in every generation you know he was once asked to define what he meant by once in every generation and he actually answered it once every 19 years i guess that was the generational time span at the time he answered that question cerca 1820 after he was out of office well in your gut in your instinct does this feel worse than the 60s and 70s i lived through the 60s and 70s it seemed interminable it was exacerbated by a very unjust war the vietnam war we had a president who lied to congress to get them to adopt the gulf of tonkin resolution which theoretically legally justified the war though it wasn't an actual declaration of war we had a draft but 55 000 young men of my generation never come home for a war they never understood never wanted to fight was never justified legally morally or naturally we we don't have that now so it's hard for me to say uh which is worse i don't want to get myself in trouble but i do fear the totalitarian instincts of the president which were on display the other day that i am with uh general mattis m-a-t-t-i-s general madison on all of that now that that goes unchecked as i wrote at um rockwell.com this week we will have both tyranny and anarchy at the same time so talk about your forthcoming book you're writing a treatise on natural law is it intended for lay audiences is it intended for legal scholars only and from what i'm told by you it's got some rothbard in it yes it has a lot of rothbard in it it is um about 99 complete it's 550 this is going to scare you it's it's a doorstop it's 550 pages and it's 1650 footnotes it's everything you need to know about the natural law going back to aristotle and its application through federal courts going up to obergefell the same-sex marriage decision uh in the united states so it's an introduction to natural law constitutionalism in america history and theory you have to go back to aristotle augustine and aquinas because they are the the religious figures philosophers in their own right the originators of this doctrine in terms of writing it down the originator of natural law is the creator but they're the originator on the on the human side so after the theory and the history we looked at every supreme court opinion that expressly accepted or expressly rejected the concept of natural law uh and explained it and and explained it woven throughout history so if you want an introduction to natural law or if you want almost anything you need to know about natural law this book which i hope will be out in september is for you i've already undergone the peer review and even though the peer review was by brilliant philosophers and legal scholars some of them said to me why did you rely so heavily on murray rothbard and i said because nobody in my lifetime has articulated natural law and natural rights better than he did that's a pretty strong statement i i don't know how we get that in the hands of more judges more law professors more law students because i think law school is a big part of the problem here yes i mean law schools are hotbeds uh of big government i actually ran into a lot of resistance uh teaching a course on the legal theory i won't name the name of the law school i've had so many issues with them and i want to have more but a prominent law school in new york city where i was on the faculty for four years there was resistance from other members of the faculty the dean at the time was a strong supporter of mine the students ended up loving it uh because it was a a slice of legal philosophy that they had never heard of before wait a minute there are rights that come from our humanity and the government can't take them away yes here's how you make the argument here's the origin of the rights and here's how they play out today but a lot of law professors who are hard left even some that are hard right very few that are don't like to hear the the natural law argument why because it's something they can't change it's something they're stuck with well it would go a long way towards making america a better place today or at least keeping it from unraveling judge we're about out of time i want to thank you so much for your time we'll link to a couple of your books we'll link to the ed string and book that you mentioned as well with the youtube that will come of this and it looks like a beautiful day behind you at your farm and we wish you well have a great weekend judge thank you and and all my best to those who uh gave an hour of their valuable time on a friday after in the summer time that's 110 in the shade here in new jersey so it's just as if it was summer thank you so much everybody god love you all right ladies and gentlemen thank you have a great weekend [Music] you

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Keywords: Mises, Jeff Deist, COVID-19, coronavirus, live, future, strategy, plan, law, legal, Napolitano, interview, Trump, politics, lawlessness, government, Constitution, rights, lockdown, Cuomo, constituents, Judge, crisis, analysis, Natural Law, perspective, George Floyd, protest, loot, burn, Insurrection, fire, police, national guard, soldiers, riot, violence, Minneapolis, military, Rothbard

Id: I2C-EjKjiIU

Length: 53min 0sec (3180 seconds)

Published: Fri Jun 05 2020