Napolitano Wrong on Government Powers

http://www.judgenap.com/post/can-the-government-restrict-travel-to-protect-public-health

Not a few Constitutional scholars would question if not reject his opening salvo as something rendered moot by both the president's role as Commander-in-Chief as well as the 14^th Amendment and its empowerment of the Federal Government to provide equal protection.

In terms of legal theory, much of his argument is rendered if not obsolete, then theoretical at best. Many jurists would question as to whether a temporary quarantine is the same as the elimination of freedom. An imposition yes, but in connection to a crisis, what is tantamount to war or a threat to the security of the country would (certainly by historical estimations) fall under the purview of executive action. The War Powers Act grants the president authority to temporarily 'wage war' which of course would include the imposition of martial law. There are actually multiple angles to approach this question.

Should Congress take an active role in terms of a 'declaration' that would then grant the executive full powers? Perhaps, but again legal precedent has modified some of these arguments, and in political terms (for good or ill) both Left and Right (for different reasons and with different intents) support the current pro-executive position. The Left would support the commander's role and/or the empowerment of the federal government as a principle of public security, while the Right of course adores the doctrine of the Unitary Executive.

While on one level I would agree that government 'aggression' is immoral, that's a hard argument to make in Biblical terms... terms which are not cased in covenantal language but in general or natural categories. Rome may as magistrate do 'good' and clearly that is not a covenantal or righteous good. And part of that 'good' is in reference to the sword... a tool representing a violence we as Christians are to eschew. It's not a 'good' that we can partake of because its 'good' is limited to being a restraint on this present evil age. It's a good that is in the final analysis something akin to a necessary evil.... necessary but indeed evil and as such it's nothing we (as Christians) should partake of.

Napolitano (in direct contradiction with his Roman Catholicism) seems to want to imply the state has no right to violence but of course that's what the state is. In terms of the US Constitution it recognises the right to declare and wage war and thus I find his argument (in terms of the state, non-aggression and Rothbard) falls flat on all fronts including (as he admits) stare decisis or precedent.

I find any appeal to the framers and ratifiers to be problematic as they didn't agree, left certain critical questions in the Constitution unresolved and vague and clearly Washington, the founding hero whose credentials cannot be questioned, did not hold Napolitano's or the Libertarian view. Washington was in agreement with Alexander Hamilton's concepts of Federalism and clearly believed he had the right, duty and Constitutional authority to suppress the Whiskey Rebellion just a few years after ratification. Indeed, such crucial concepts such as Judicial Review were controversial from the beginning and there was sharp disagreement among the framers and ratifiers as to what was the role of the courts and the nature of checks and balances. Even the Bill of Rights was passed with considerable controversy. There is no real consensus among the framers and founders apart from the nebulous, controversial and sometimes contradictory legacy that is the US Constitution. Napolitano is making misleading statements in that he's not qualifying them but rather is pushing a specific thread and insisting it is (and was) the only legitimate train and trajectory of legal thought. It's just not the case.

Powers are delegated and yet once again the original language is vague and like it or not the country fought a war in the 19^th century that was tantamount to a referendum... a revisiting of a system which had within a couple of generations already failed. The post-war amendments tweaked the Constitution and by some accounts clarified it and to many thinkers the ill-defined and by some accounts unworkable 10^th Amendment was effectively dead.

And yet it wasn't that simple as many issues were set aside to simmer for a couple of generations and of course society changed and with those changes the principles of the 18^th century had to be applied in a new context. Though I'm no fan or advocate of modernity and progressive reform the idea that concepts had to remain static in 18^th century terms was something neither the framers nor any other legal mind ever entertained until the culture wars of the 20^th century. The Constitution is a legal document, not Scripture. Those that treat it as the latter are by definition... heretics. They are heterodox in terms of legal theory and certainly in terms of Christianity.

In terms of the claimed assault on liberty found in the expansion of powers, well, I think some in this country would say the expansion of federal powers led to more liberty, whether from slavery or otherwise. And again, Napolitano assumes all the Founders and the history of law all rest on a libertarian view of personal liberty... which it doesn't. Liberty can also be framed in terms of 'access' for all and in terms of 'order' which some would argue is necessary for individual freedom to be properly exercised. And this is just the tip of the iceberg. I have to believe Napolitano knows this but has chosen to ignore it for the sake of his audience.

His paragraph on the states forming the federal government can be questioned on many fronts, but again the simplest way to address the question is in terms of the Equal Protection Clause of the 14^th Amendment which fundamentally changed the nature of federalism. Napolitano and others may not like the results of the Civil War but it did fundamentally change the nature of Federalism and the relationship between Washington and the states, as well as the question of state's rights.

I find many in these circles seem to consider this development illegitimate (an unconstitutional amendment as it were) but at this point after 160 years on the books and roughly a century of examples of these concepts in action and application, their case is (legally speaking) pretty much null and void. In fact their neglect of the 14^th Amendment is in terms of Constitutional jurisprudence akin to rejecting one of the primary articles or one of the other amendments. It doesn't stand.

So, can the federal government quarantine people without 'proof' of contagion and imminent assault? Napolitano says 'no', and yet the answer is clearly 'yes'. Now, what is the 'proof 'of contagion and threat of imminent assault that Napolitano is referring to? Again, this is not a straightforward answer. Many (if not most) legal scholars would say the criteria have already been met. With regard to Napolitano the more salient question would be.... what would constitute proof? And who gets to decide what or what isn't legitimate proof that would constitute grounds for executive action?

Interestingly the Trump administration's bumbling and buffoonish handling of the situation has led to the federal government not taking the lead... but instead leadership is clearly in the hands of the states. It's the states that are issuing the quarantine orders. Governors are not sitting idle waiting on the inept administration that currently runs the White House. Is that more acceptable to Napolitano? In some respects it ought to be.

His due process argument and requirement for a trial is quaint and yet no serious scholar would even entertain it. Is this a shortcoming on the part of the founders and drafters of the Constitution? Perhaps, but it could also be argued that the powers were granted in the Constitution to the Executive and yet the (at the time) controversial Bill of Rights has generated contradictions. In the past a state-wide response would have made more sense but both the fallout from the Civil War, the nature of imminency in the techno-nuclear post-World War II era and certainly in light of Globalism, most have embraced (right or wrong) Executive-creep, in allowing the White House to respond to threats and situations in the short term... as waiting for the (highly politicised) legislative and judicial process is not always realistic or by some estimates responsible leadership.

Finally, Napolitano really shows his hand in his concluding statements... statements which are actually anti-Constitutional... which sort of defeats the premise of his whole argument.

Additionally they are anti-Biblical statements that no Christian can support.

Taxation is not theft. Sorry. The Constitution doesn't support that view and neither does the Scripture. That's an Enlightenment ultra-Libertarian principle rooted in a false philosophical system that Napolitano has utilised to ground his economic, political and judicial theory.

The impairment of economic activity (what he insists on calling liberty) by regulation is not a 'wrong'. It is permitted both Constitutionally and no Christian (on various principles) can oppose it in toto. A Sacralist theology would have to (if honest) demand regulation and even a Separatist-Pilgrim minded theology recognises its practical value and import. Can it be abused? Of course and we would expect it to be because man is fallen and even Libertarianism won't fix it... neither will market forces which are never neutral, nor do they operate in a vacuum... nor (we might add) are such 'neutralist' principles in compliance with Biblical ethics.

The slaughter of innocents by war is something all Christians should oppose and yet Napolitano gives great credence to the Constitution and utilises it as an authoritative standard. The document supports war and the waging of it. It is of course not a Christian document and is in fact grounded in wicked and murderous actions (the 1776 Rebellion) that led to the formation of the United States and its government. That said, in Providential terms such developments were 'ordained by God' and thus we submit to the results... but that's a far cry from supporting and endorsing these entities. Nevertheless fallen governments which are violence (in their essence) wage war. It is the course of this age. Our calling is to turn away from such wars and the principles which undergird them. Thus, we do not serve in their armies or (for that matter) vote in their elections and thus endorse and support the system and all its wicked aspirations and deeds. This is a very different attitude from the Libertarianism of Napolitano, his laudable but flawed paradigm for the decrying of slaughter as well as numerous contradictory principles regarding the state.

As far as the infringement of expressive liberties, he's speaking from the framework of rights... a concept that is absent from the Bible. In terms of the Constitution the various rights (as has been proved over time) will at times come into conflict with each other and such questions have to be resolved... no easy task. Most Christians actually embrace the restriction of certain expressive liberties as indeed living in a libertine society can at times be as oppressive as living in an authoritarian setting. Regardless we're called to bear witness to Christ and worship Him. Liberties are helpful but also have the potential to mislead and confuse.... as is the case with Napolitano, the Christian Libertarian movement, and certainly the Christian embrace of Classical Liberalism.

In some respects I have little interest in such questions but I find this line of argument to be misleading and in some cases dangerous. But most of all I am concerned that Christians are being taken in by it.

For my part, I view the Constitution as something of a fiction, a convenient but mythologised instrument used and abused by those in power... to wield and acquire power and to check the aspirations and plots of their political enemies. It's akin to a football that lost its real import long ago. The truth is it is a deeply flawed document crafted for an 18^th century agrarian society of just 4 million people. The idea that it could stand without change, deliberate modification, development and the like is a pipe dream. This is why most modern liberal democracies will from time to time produce new constitutions.

All that said, any politician who has voted to support something like the Patriot Act has already refuted and rejected the principles of the founders and the underlying principles which (at least ostensibly) undergird the US Constitution. Napolitano and I would be in agreement on that point. For that matter I would rather not see the government impose quarantines. But my feelings do not override the law, even especially wicked laws such as the Patriot Act. That said, there's no going back and in fact in light of Coronavirus, we're about to open up a new chapter of legal development. This is the next 9/11 and even if things calm down in May, August or after, it's never going to be quite the same. There's going to be a rash of new legislation and just as with 9/11, a new mentality is going to take hold. People will talk about it for a few years but then they'll grow used to it and move on.

Will Church leaders provide guidance and wisdom? For the most part 'no', and those that attempt to will largely do so from within a political framework and then twenty years later when it's convenient they'll re-write their own history and create a mythology about what they said, did and stood for. We've seen it before and we're seeing it now.

The danger of Napolitano is that he's teaching people to disobey and rebel on less than Biblical grounds, to make stands that are neither theologically, historically or legally sound and many will confuse the response of the state with genuine persecution... to their peril, for they fall under the condemnation of Romans 13.

We will face difficulties and the Church will need to wrestle with the question of quarantine vis-à-vis worship. The present ban is not a move against Christians but a public health measure and yet it will open the door to further restrictions and controls... especially for the churches that have already wed themselves to the state in terms of regulation and finance.

We need sound thinking at this time but there's little to be found.