The born-again individualist: Fox News Channel's Judge Andrew Napolitano on lying cops, out-of-control government, and his bestselling new book, Constitutional Chaos

Reason, March, 2005 by Nick Gillespie

On many issues, I agree with conservative thought. It's not society that causes crimes; individuals cause crimes. I believe abortion is murder. I believe the Second Amendment protects an absolute right to keep and bear arms. I believe affirmative action based on race is an absolutely unconstitutional as well as immoral policy. I also believe that government is best which governs least and that the Constitution only gives 18 specific enumerated delegated powers to the federal government.

I believe that Congress and the president and the Supreme Court have grown to an unrecognizable point, where we now have members of Congress that think they can solve every problem under the sun. So Sen. John McCain [R-Ariz.], for whom I have a lot of respect, said to [New York Yankees owner] George Steinbrenner, "Don't you dare pay Jason Giambi, because we heard a rumor in a newspaper that he told a grand jury that he once used steroids, and if you do, we're going to make sure you can't." What are they going to outlaw next? The speed of Roger Clemens' fastball because it might hurt the batters' wrists? I mean, this is an attitude of Potomac fever that the government thinks we can legislate about and solve every crime and every problem.

reason: Let's talk about natural law and positivism. Sketch the two camps and why you believe what you do.

Napolitano: Scholars and lawyers and jurists and people interested in this have always debated what is the source of our rights. There are many, many schools of thought, but they basically fall into two categories. One says that our rights come by virtue of our humanity because we are created in God's image and likeness. Because God is perfectly free, he has instilled in us all the yearnings for freedom that we have: freedom of thought, freedom to develop one's personality, freedom to express oneself, freedom of movement, freedom of religion, freedom of association, etc. That school of thought is known as the natural law. Thomas Jefferson, who wrote the Declaration; James Madison, who wrote the Constitution; and virtually all the Founding Fathers, even though some were deists and some were atheists, they were to a person believers in the natural law.

The other school of thought is sometimes called positivism, sometimes called legal realism. It basically says that the law is whatever the lawgiver says it is. As long as the lawgiver follows its own rules, whatever it says is the law. So positivism would say the majority in a democracy always rules. There are no minority rights because there are no brakes on the majority will. If the majority wants to get rid of the First Amendment, the majority rules; there is no First Amendment. Therefore, there's no protection for freedom of speech. If the majority wants to take property belonging to person A and give it to person B because the majority rules, the majority can do that because, again, there are no natural rights that would allow person A to keep his property against the will of the government.