Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

baking. Consequently, the Supreme Court decided in Lochner v. New York, that New York had no right to make such a law. The opinion states:

It is a question of which of two powers or rights shall prevail—the power of the State to legislate or the right of the individual to liberty of person and freedom to contract . . . The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

This poorly reasoned opinion did the right thing (uphold freedom of contract) for the wrong reason (the state’s claim of right to interfere was not strong enough). The state is without any right to interfere in freely negotiated for contracts. But sadly, Lochner is no longer the law. Since the days of Lochner, the defense of natural rights has fallen into disrepute with courts. If individuals know that the government can step in and nullify the contracts they enter into, what purpose do they serve? The post-Lochner era challenges both the sanctity and meaning of contracts themselves, taking another one of our fundamental rights with it.

We Are Free to Work as Much

(or as Little) as We Want

Flash forward. What do cases like Wickard v. Filburn, Home Building & Loan Association v. Blaisdell, or Lochner v. New York mean today? While there may not be too many cases involving backyard wheat production in recent memory, the right to keep the fruit of our own labor is still in peril. Between the current economic downturn and the Big Government crowd still in power, it would not seem unlikely for the government to put constraints on our freedom to work. A New York Times article suggests that the federal government should force workers to take extended vacations, days off, or restrict their weekly hours, in order to reduce the number of layoffs.27 The suggestion is to adopt a policy similar to European countries like France, where the law dictates the number of hours workers are allowed to clock in per week, thereby reducing the amount of overtime individuals are able to receive and, essentially, the amount of money they are able to make. In Blaisdell, the Supreme Court opened the door to exactly this type of government assault on our right to enter into and enforce binding private contracts.

While longer vacations never fail to sound appealing, mandates like this from the government are patently un-American. We have always been a self-made, individualistic people who pick ourselves up by the bootstraps and work as hard, and for as many hours as needed to reach our intended goals. And the bottom line is, this is a democracy whose government is by law restrained by a Constitution that guarantees enforcement of the Natural Law, and it should be our choice to work as much or as little as we please.

One of the reasons why people come to America is that there are fewer speed bumps to the top of the ladder in comparison with other countries. People from a variety of backgrounds can toil and sweat their way up the ladder here. If sanctions were put on the number of hours we were allowed to work, there would be fewer avenues open to reach the top, and only certain people would be able to make it (likely those with the best educations, most social and family connections, the most money, and in favor with the government). This is not what America is about, and this is certainly not freedom in a broad sense.

All of the natural rights discussed in this chapter deal with subject matter that is exceedingly personal. The private decisions we make about where we want to raise our families, the agreements we make with other parties, and the amount of work we decide to do, are all choices that have an effect on our personal health, wealth, and happiness. As individuals, we make decisions that are varied. What is good for one may simply not be good for another. It is time for the government finally to recognize the American people as individuals and hand us back our natural rights.

Lie #3

“Judges Are Like Umpires”1

President Barack Obama, in an interview conducted less than two months into his presidency, was asked about the toughest decisions he had to make as president. He responded by stating that “[b]y the time an issue reaches my desk, it’s a hard issue. If it was an easy issue, somebody else would have solved it and it wouldn’t have reached me.”2 The same goes for Supreme Court justices, and to a lesser extent, appellate judges. The Supreme Court is mainly faced with the hard cases in which the law is unclear, or lower federal courts or state supreme courts have ruled differently or inconsistently on federal issues. In deciding these cases, the Supreme Court justices must essentially state what they believe the law to be. By doing so, the majority of the Court, in clarifying the meaning of the law, makes policy.3

One of the main concerns that politicians in the legislative and executive branches of government have with the federal judiciary is that judges will engage in “judicial activism.” According to Black’s Law Dictionary, a source universally accepted in the American and British legal communities, judicial activism is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”4 Judges espousing this philosophy tend to “find constitutional violations and are willing to ignore precedent.”5 This definition implies that judicial activists are biased judges who intentionally disregard the true meaning of the law to further their own policy agendas, and essentially legislate from the bench. Given these characteristics, judicial activists have no place on any court, let