Andrew P. Napolitano on the form of government U.S. citizens will be celebrating next month, on the 250th anniversary of the Declaration of Independence.
Ultimate Fighting Championship fanfare on June 13 ahead of the UFC – Freedom 250 fights the following day outside the White House. (White House/ Austin DeSisto)
The Declaration of Independence of July 4, 1776, embraces two value sets. The first is natural rights, and the second is limited government. After 250 years, neither value has survived, and the opposite of each currently prevails in America.
Thomas Jefferson drafted the Declaration in three days while staying at a rooming house in Philadelphia. He had been greatly influenced by the British philosopher John Locke. Locke is the godfather of the theory of natural rights, which he extrapolated from the natural law teachings of Aristotle, Augustine and Aquinas.
Aristotle (384-322 B.C.) did not argue that humans have inherent natural rights, but rather that the concept of justice demanded by human nature should be “naturally just” when addressing claims for protection of persons and property, whether those protections were legislated or not. The “whether legislated or not” is the first known articulation of a higher civil law, higher than the government’s own laws.
St. Augustine (354-430 A.D.) also did not define explicitly the existence of natural rights, but he did argue that norms of human behavior are knowable from the exercise of reason aided by revelation. He is the seminal thinker to express the view that right and wrong is knowable to all persons, whether legislated or not; and this knowledge — because it is common to all — is itself a higher law. He called this universal knowledge the natural law.
St. Thomas Aquinas (1225-1274 A.D.) did not articulate natural rights, but he did proceed deep into the ideas of Aristotle and Augustine and taught that all human beings possess innate moral claims and innate moral obligations to honor the moral claims of other persons; and these claims and obligations are knowable by the exercise of reason.
John Locke (1632-1704), whose writings Jefferson read at the College of William and Mary, and which James Madison read at Princeton, drew upon all three philosophers to argue that Aquinas’ moral natural law claims are really natural rights, and these, too, just like knowing right from wrong, are inherent in our humanity and are superior to the government.
Portrait of John Locke by Godfrey Kneller. (The Hermitage, St. Petersburg, Wikimedia Commons/Public Domain)
Locke further argued that rights are claims against the whole world. Thus, your right to be alive, to think as you wish, to say what you think, to publish what you say; to worship as you wish or not to worship; your right to associate with others; your right to protect yourself and your property; your right to be left alone; your right to own and possess and control property; your right to travel; and your right to fairness from the government are all natural rights, and the exercise of these rights does not require government permission.
From all of this, Jefferson wrote that our rights are divinely gifted, individually possessed and inalienable. This is the first value we celebrate on July 4.
The second value also stems from human nature. Locke taught and Jefferson believed that the ownership of property is absolute. That is, the owner can use his property as he wishes — without harming others; he can sell or lease it; and he can exclude anyone he wishes for any unstated reason — including the government.
From that view, Jefferson recognized that the only morally licit government was one affirmatively consented to by the governed. Eleven years later, Madison was the scrivener at the Constitutional Convention; and two years after that, he crafted the Bill of Rights. Jefferson, Madison and their colleagues recognized the divine hand in the human origin of personal freedom, the natural rights of all persons and the limited nature of the republic they created.
Then Came the Great Scourge
Recovery workers in the rubble of the Shajareh Tayyebeh elementary school in Minab, Iran, where scores of schoolchildren were killed by U.S. airstrikes on Feb. 28. (Mehr News Agency /Wikimedia Commons/ CC BY 4.0)
Then, along came war — the great scourge of natural rights and limited government.
The extraconstitutional growth of government comes during war and war-like crises, from the never-declared war with France in the 1790s that spawned the Alien and Sedition Acts, which punished speech critical of the government; to the arrest of journalists without charge or trial during the Civil War; to the prosecution of pamphleteers against the draft during World War I; to incarceration of Americans in American concentration camps based on race during World War II; to the war on terror, which spawned the Patriot Act and its warrantless spying; to the present era’s undeclared wars on presidential whim, and the expansion of America’s 750 foreign military bases into 80 countries.
To Jefferson and Madison, a natural right was truly inalienable and exercisable against the whole world. It may only morally and legally be curtailed after a jury trial and upon conviction for violating someone else’s natural rights. Any law or executive command that impairs natural rights was invalid and there was no obligation to comply with it. On this, Aristotle, Augustine, Aquinas, Locke, Jefferson and Madison all agreed.
In a constitutional republic, government may only take liberty and property pursuant to law and only from those who have consented by granting those powers to the government in the constitution that created it; and any exercise of any powers not consented to by the governed is assaultive of natural rights, is beyond the government’s moral and constitutional authority, is morally illicit and of no legal validity.
In an empire, the government has no limits. It does whatever the head of state wants. It denies the enforceability of international norms, enriches itself at the people’s expense, takes property without the consent of the governed, violates natural rights, starts wars to please constituent groups, murders people without trial whom it claims have violated its laws, suppresses foreign people and tells them how to live, and even kidnaps their leaders. It floods the money supply with cash, thereby devaluing all private property; it monitors all communications and builds hundreds of military bases around the globe. Its legislature is weak and bullied by the head of state, who imposes his own taxes, promotes blood sport and builds garish monuments to himself.
Which form of government are we celebrating next month?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Well put, Mr Judge! I want to recall Benjamin Ferencz, a Jew, the last surviving judge from Nuremberg trials who said in an interview 20 years ago “There are some people who do not trust the rule of law, and they prefer to use power to achieve their goals as they decide, when they decide. That’s led by the United States. … War will make mass murderers out of otherwise decent people. … It’s inevitable, whether they are Americans, or they’re Germans, or anybody else.”
John Locke said that one could take as much land as they wanted as long as there was “enough and as good” left for everyone else. His lack of practical solutions to the land problem, and his lack of clarity of the natural right to the earth as the birthright of all people, is the crack in the Liberty Bell. We need to tax shift off of work, wages and production and on to the unearned income from land and natural resources, the ancient solution rediscovered by Henry George, spelled out in his great masterwork Progress and Poverty, buried by neoliberal economics, but a live and vibrant growing movement today.
The Earth Belongs to Everyone!
Problem is: It was long ago usurped by the power of history’s elites.
If the earth ‘belongs’ to everyone without exception or distinction, then the practical consequence is that it ‘belongs’ to no one; and both thoughts are the kind of absurdity the human mind can generate. When ownership is applied in the Blackstone sense, the responsibility of stewardship is lost to grass dominion, cycles of legalisms begin and the fundamental principles of the living world slip away from the most basic foundations of life: place, responsibility, ordered sustaining relationships with primary resources.
To be clear, the applied context of the term: “The Earth Belongs to Everyone” refers to how we can create a more equitable, sustainable future within planetary boundaries.
With apologies, your response is way over this commenters head, when it comes to your statement: “the kind of absurdity the human mind can generate… then the practical consequence is that it ‘belongs’ to no one; and both thoughts are the kind of absurdity the human mind can generate.”
As we, rather belatedly, are coming to know, Elite ownership – individual private greed, deals only in immediate practical consequences.
If you are referring to ownership as in the “Blackstone sense” coined by 18th-century English jurist Sir William Blackstone – the concept of “sole and despotic dominion,” describing property ownership as an absolute right to control, use, and dispose of a resource in total exclusion of everyone else, only then does it become apparent that any vision of a better future for all, is of no immediate practical consequence.
Therefore, it seems, your immediately aforementioned statement is the absurdity!
Note:
Some paraphrasing of AI collected data.
Exceedingly excellent comments here by BOSTON, Annette Morgan, Em and Charlie Stephens most responsibly lending broader and/or critical and historically-anchored perspectives to Judge Napolitano’s rather timely framed political binary query. The trouble, however, can’t be confined to the political forms of republic, democracy and/or empire which the U.S. political elites and theoretically the electorate are sheparded to periodically ingest. Israel, the commandeering, illegitimate entity that exercises a financial chokehold on the U.S. political class, is both a republic and a functional if also flawed democracy that is on a trajectory to becoming an empire asap. In the present context, Israel’s assuming and upholding of all those political forms did nothing to prevent it from becoming an atomically-armed geopolitical vampire bleeding its regional neighbourhood. Hence, embracing mere political forms are not sufficient in themselves but even more important are what benign if not also altruistic values those forms enshrine and uphold during its existence and progress. 250th anniversary of U.S. existence should help it in reflecting on the true meaning and purpose of celebrating it !
250, and still not grown up.
250 years on, we are living the truth of what John Adams predicted, “In every society known to man an aristocracy has risen up in the course of time, consisting of a very few rich and honorable families who have united with each other against the people and the first magistrate.”
Supreme Court Justice Louis Brandeis reiterated in 1941, “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”
Napolitano is one of the libertarian fantasists who have sold us on the idea that a free market exists magically independently of the state, even though the state drafts and enforces the laws that define the ownership of property and how it may be used to generate income, laws that uniformly discriminate in favor of the largest owners of property, or capital.
The problem with ‘natural rights’ as framed by Locke is that a human imperium over ‘the natural world’ is established with all the qualities of empire Napolitano describes. Humans must have no more dominion over the natural world than the natural rights argument denies governments in their relations with the people; the forces of biophysical reality must limit ‘human rights’, restrain and regulate our action into an ecological ‘homeostasis’ as is the case for all the rest of life. The failure of this form of relationship underlies the sprawling linage of difficulties that we tend to see as singular, derivative and addressable with more singular and derivative responses.
I’d like to quote a paragraph from ‘Problems of Humanity’ by Alice A Bailey. It sums up the point at which humanity has reached.
…our standard of civilized living is far too high from the standpoint of possessions and far too low from the angle of spiritual values. Our modern civilization will not stand up to the acid test of value. A nation is today regarded as civilised when it sets its value on mental development, when it puts a premium on analysis and criticism and when all its resources are directed towards the satisfying of physical desire, towards the production of material things and towards the implementing of material purposes and towards dominating competitively in the world, towards the amassing of riches, the acquiring of property, the achievement of a high standard of material living and towards the cornering of the produce of the earth—largely for the benefit of certain groups of ambitious and wealthy men.
For this sad and dire situation — a crisis of humanity’s own making — we are paying the price of endless war, rooted in greed and material ambition that touch every nation. It has become clear that humanity has cultivated a habit of selfishness and an attachment to material gain, and this has brought our modern civilization to the point of exhaustion…”
Will cultured people, and there are many of is in the world today, realise our opportunity? This is the ultimate question. Can we begin to build anew as this civilisation reaches its end — which is now plainly visible — and choose a future shaped by deeper values rather than the old patterns that are collapsing. This is the fundamental question we need to ask ourselves
The Revolutionary War ended with a slave owning oligarchy in power. Divine Right might have taken a blow and political theory advanced ideals of freedom and property, but slavery, limiting political rights to property owners and to the male sex, and the murder and theft of “Indian land,” many of whom were farmers. The Trail of Tears is an ugly story. In the North, debt was used against subsistence farmers to take their land and was objected to as shown by Shay’s Rebellion.
The founding of our country is a history of violence draped in ideals that were both new and real and also a cover for the ‘Indian genocides” and class oppression. Judge Napolitano’s limited story perpetuates myths prevalent today. Mentioning that we have 750 military bases in 80 countries is not enough absent further information and context.
I live just down the road from Daniel Shays Highway, (rt 202 in Western Ma.) Western Ma is still colonized by the elites in Boston.
Lois – Do you mean that Boston elites own much of the land in Western Ma? Then you need a land value tax system to tax away their unearned income and keep it in Western MA. Elites own the land where poor people live as renters. The “democracy” never solved the land problem or gave us natural equal rights to the earth as a birthright. Read my Schumacher Lecture delivered in Amherst titled Democracy, Earth Rights and the Next Economy. – alanna hartzok
With regards to property rights, how are nomadic tribes to protect their ancestral rights to continue to move as the seasons change so as to continue their traditional ways that sustain them and the land they harvest and graze their herds on? Don’t they have natural rights? Land ownership is an alien concept to them. Our way of living on this planet is not the only way and based on current data is probably not the best way.
The fatal flaw in the Judge’s analysis, IMHO, is that the founding fathers of the US constitution wrote it with themselves in mind – white, land owning men. Not coming to grips with the imperial colonial near complete genocide of the Indigenous peoples and the fact that the foundations of the US economy was developed and built on the backs of enslaved African people is the rot that continues, to, well rot.
Thanks for this timely reminder; we seem to require pieces like yours on a pretty regular basis as an antidote to the triumphalism we suffer from MSM. I hope this isn’t the last one we hear from you.
Forms and Function’s
A Republic or an Empire?
In former historical eras many empires operated as republics prior to the international birth of the concept of unipolar hegemony.
Seemingly it is not apparent to Judge Andrew Napolitano, that US Constitutional government form is NOT how it actually functions – is “not all it’s cracked up to be”.
‘Either’ ‘Or’ are too narrow as the only options for there to actually be a future in a multipolarity world.!
The real misfunction was set in concrete 250 years ago, come July 4th, by the tiny minority of ‘white’ slaveholding men who promulgated and endorsed the US Constitutional Contract, in the first instant; when government was institutionally created.
“Ay, there’s the rub” of what we are, between truth and fiction, between authenticity and the unintentional duplicity in hypocrisy.
The ‘natural right’ of being human means that one man’s reason may be another’s treason according to the human construct of law.
Being human means too, that raw emotion and intentional action are sometimes indistinguishable to the best of us, in our actions. How, and by whom are raw instinct and conscious behavior determined and separated?
In this day and age, can Apartheid racism be considered logical reasoning?
Governments are derived from constructs of human minds and not, as yet, from conscienceless AI data bases.
Human beings – ‘governments’ – having ‘natural rights’ do not automatically preclude their acting ethically.
What are the factors that distort human behaviors towards the unethical?
“Then, along came war — the great scourge of natural rights and limited government.”
Lest one forget that one component in all of history is warfare.
But then the Judge is thinking subjectively, his main concern seems to be that what is good for him and the US is universally good for all of humankind.
The ‘subjective’ in classical philosophies has only more recently begun, legitimately, to be questioned, as seemingly, is of no concern to the Judge.
Thinking of, and counter citing the long-ostracized Kyiv-born Jewish existentialist Lev Shestov (born Yeguda Lev Shvartsman). He built his life’s work as a fierce critique of universal, absolute truths fiercely arguing that truth is deeply subjective, shaped by individual human experience and personal despair rather than universal logic.
What IS today: the form does not reflect the actual function. The product bares no actual resemblance to the presupposed intended purpose or function.
Perhaps it’s the fraudulent unrestricted power of money – the material goods in politics that causes dissension among mere mortals?
Hence all foreigners are imbued with ‘natural rights’?
Simply thinking freely, existentially, exponentially in linguistic terminology!
The English King has won the American Revolution. It just took a lot longer than originally planned.
But today, American Presidents pay homage to Buckingham Palace, America would not dream of being independent of England, and we even have our own California Princess to bend a knee towards. After all, she was once on TV!
America lost the American Revolution, and by the time we sent our youth to die for England in The War To End All Wars, America was back to the same sort of colonial status as the Aussies sending cannon fodder to Gallipoli. Now, happily send your children to die wherever the bloody King says he needs to fight a war.
Or, I suppose Americans could rebel and declare Independence. But no, that was another generation, and they were nothing like today’s loyal subjects to Kings.
I think we’ll all find – hopefully soon – that it’s not “the King” who won the war. It was the same organized crime syndicate that controls the Crown and its Empire (and has, pretty much since Henry the 8th), that lost control on July 4th , 1776. It was the Mafia’s tea being thrown into Boston Harbor. The same Mafia that Vandana Shiva suggests took $45 trillion in today’s money out of India alone. They tried right away to get back control, chartering the First Bank of the United States in 1791 – the same year we got our Bill of Rights. But their plunder was egregious, as always, and the charter wasn’t renewed by Congress in 1811. The Mafia Don of the day said, “Teach those Americans a lesson. Send them back to colonial status (published in the London Daily Express). So they started the War of 1812. They lost, but it nearly bankrupted America. So Congress borrowed the money to pay the war debts from the Second Bank of the United States (1816). The Mafia’s plunder got out of hand again, and their charter renewal failed again in 1836. You get the picture. You can follow the Mafia’s rackets over all of recent history, to present day. It’s about plunder and expansion of turf – control – over ever larger swaths of the planet. The escalation ladder – right in front of our faces – is petty corruption, bribery, blackmail, extortion, intimidation, assassination, and societal ruin. We’ve seen it all, multiple times over, but we’re not allowed to know the truth of it all. The Mafia took full economic control on December 23rd, 1913. Their finagled right to create credit (debt, from the victim’s side of the arrangement) has enabled their control of what we call “the West.” They took political control on November 22nd, 1963. And they took full governance control on September 11th, 2001. Our Constitution – the only serious obstacle to full control in America – has been whittled away at for a couple of generations now. It’s perilously close to being rendered mute. The gangsters are libertarians, of course. They believe that they should be able to do whatever they want, unconstrained, including by government, such as it is these days. Judge Napolitano refers to “the right to be left alone” – a very important right. This is what Isaiah Berlin referred to as “negative liberty” in his 1958 essay. Now that money is “speech” and they effectively control money, they therefore control speech. And as we see, they fully intend to do that. What successful mafia do you know of that believes the rule of law applies to them? I think we’ll find that everything we’re seeing right now makes a lot more sense if you assume we’re under attack comprehensively by highly organized and obscenely wealthy organized crime, and have been for centuries. The violence racket – including its clandestine part – is the enforcement – for severely punishing the disobedient and turf expansion. All of our modern wars are not so much individual wars as they are the nearly constant punishing of disobedient societies – those who choose not to be plundered and controlled. Control of energy is one of their most recent gambits. That’s not over yet. We should celebrate the values laid out in our Declaration, but we should be much more thoughtful about what, exactly, we’re celebrating. I took an oath to protect and defend the Constitution, against all enemies foreign or domestic more than 50 years ago. I still work at that, because the Mafia never gives up. And they’ll never be anything but gangsters. It’s long past time for the pillaging and violence to stop.
Thank you for this excellent analysis. Agree 100%!
“Then, along came war — the great scourge of natural rights and limited government.”
War is the means of the tyrant to demand power, on false claims of military threats, in service to his political party and interest groups that source the bribes. The development of economic concentrations after the Civil War transformed our government to a pseudo-democracy to cloak their operations.