October 27, 2005
Thursday

Judge Andrew Napolitano, who appears as a legal analyst on more Fox News Channels shows than anyone can count, is a judge no more. But before he became the most steadfast defender of civil liberties on TV, Napolitano was a life-tenured Superior Court judge in New Jersey who saw the serial abuse of government power every day in his courtroom.

His 2004 book, "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws," details those abuses. With cover-blurbs from both Rush Limbaugh and Nat Hentoff, it also explains his political journey from a super-hawkish Richard Nixon supporter during his undergraduate days at Princeton University in the late 1960s to "a born-again individualist" who says the Patriot Act is "the most abominable assault on human liberty by the Congress since the Alien and Sedition Acts of 1798."

Napolitano, a regular on "The Big Story with John Gibson" and "The O'Reilly Factor," calls himself "a small-government Barry Goldwater Republican who believes in maximum individual liberty." When I talked to him by phone from his offices in New York on Oct. 5, he was still underwhelmed by President Bush's nomination of Harriet Miers to the Supreme Court.

Q: Will Miers hurt or help the health of the Constitution?

A: That's a great question. I am what people refer to as an "originalist," meaning I believe the Constitution means the same thing today as the day it was written. In fact, the whole purpose of a written constitution is to prevent it from changing as attitudes and majorities change. I don't believe that Ms. Miers shares that view. If she shares the view of the big-government conservative Republicans, which basically is Congress can do whatever it wants, then the health of the Constitution will be impaired by her selection.

On the other hand, if she shares the view that the Constitution means what it says, that Congress cannot exceed the 18 specific, enumerated, delegated powers given to it in the Constitution, and that guaranteed rights are simply that ­ guarantees ­ then the health of the Constitution will be enhanced by her selection. But because she is the stealth candidate, it might be 10 years before we really know how she has affected the interpretation of the Constitution! [ Note Miers withdrew on October 26, 2005]

Q: What is the sound-bite synopsis of your book "Constitutional Chaos"?

A: You and I are having a conversation, Bill, and there's no judge, no jury, no courtroom, no stenographer. It is inconceivable that either one of us would go to jail because of what one of us says to another. Martha Stewart was having a conversation with an FBI agent. The FBI agent had a lawyer and she had a lawyer, but there was no judge, no jury, no courtroom, no stenographer. During the course of that conversation, the FBI agent lied to her and she lied to the FBI agent. Somehow he stayed an FBI agent and she went to jail.

What kind of a government prosecutes its citizens for committing a crime which its own agents have themselves committed? One of the reasons I wrote this book, is because in this era of the war on terror, when more and more Americans are having contact with their government, people need to know what their rights are; and people need to know what the government can get away with; and people need to know what the government will do when it wants to get you. Martha Stewart is an unfortunate example of that.

Q: What's the most important message of your book?

A: That rights are not guaranteed, even though the Constitution says they are. That government will labor mightily to make holes in the Constitution to avoid and evade it. And that a government that breaks its own laws in the act of prosecuting people is not your friend. It doesn't have a happy ending, this book. It's filled with horror stories!

I believe in the natural law, which is that our rights come from our humanity ­ they don't come from government ­ and our humanity comes from God. So we have the right to speak freely, to think freely, to travel and to associate -- whether or not it's written down and whether or not the government chooses to protect it, because those are natural rights that no government in a popular democracy can take away.

From that it follows that because the government has to respect those rights, the government itself can't violate them, thus it can't violate its own laws. But the government does break its own laws every day and this book is a catalogue of horror stories in which that occurs.

Q: You've described yourself as "a born-again individualist." What's that mean?

A: That means because individuals have immortal souls and the state does not, the individual is greater than the state. That means individual rights are guaranteed and can not be taken away by the legislative or executive branch, but only by a jury after an individual has been convicted of a crime. That also means to means that that government is best that governs least. That the Constitution means what it says.

But the default position is freedom. We are born in the state of freedom. Our natural yearnings and urgings are for freedom. It's natural and integral to all of us. Government is the negation of freedom. Therefore, government must be minimal, minimum, precise and certain. Not a government that thinks it can tax and regulate any aspect of our lives.

Q: Why aren't you running for president on the Libertarian Party?

A: Who would vote for me?!

Q: How did you come by these "radical" ideas?

A: After about a year and a half on the bench of trying criminal cases, I began to see that the Constitution does not mean what it says to the government. And that every single government lawyer who came before me, whether it was jaywalking or murder and everything in between, seemed to be spending all their time justifying ways around the Constitution, trying to pull the wool over my eyes, and claim that the things that the police did that were so obviously and patently illegal and unconstitutional were in fact condoned by higher courts.

I began to look at government not as the protector and preserver of the constitution, but only as advancing the careers of those in the government. Everyone who works in the government, from the president to a janitor, from the governor to a school teacher, takes the same oath: it's to preserve the Constitution and the rights guaranteed in it. It's not for victory in the courtroom. It's not for convicting the bad guys. It's for preserving the Constitution. I just did not see this in the hundreds, probably thousands of government lawyers that appeared me. It actually caused me to revisit some of the verities that I had accepted since I was a child.

Q: Such as?

A: Respect for authority. I now think all authority ­ I'm not talking about my bosses at Fox. I love them dearly. I'm talking about governmental authority ­ should be challenged, should be questioned. Because government is the negation of freedom, when it does anything, it shouldn't be presumed valid. It should be presumed invalid. It should have to justify its taking away of freedom in a constitutional context, rather than the challenger having to prove that its behavior is unconstitutional.

Extra questions

Q: Any simple or obvious things we must do to return to constitutional, limited government ­ or is it hopeless?

A: I think the present environment is hopeless, because of the sway over Republican members of Congress that the White House has. Can you imagine if a Democrat had proposed legislation that allowed the FBI to break into your house when you're at a basketball game on a Friday night and steal your checkbook and plant a bug underneath your toilet and your kitchen table and you'll never know that the FBI did it? That would allow the FBI to go to your lawyer, your banker, your doctor, your pharmacist, and demand your records without a search warrant? That would allow the FBI to go to a post office and read your mail without a search warrant without you knowing about it? If a Democrat had proposed that, the Republicans in Congress would have railed against it and opposed it to the skies. But yet the Republicans in this Congress go along with it, merely because a Republican president proposes it. I'm speaking, of course, of the Patriot Act, which is the most abominable assault on human liberty by the Congress since the Alien and Sedition Acts of 1798.

Q: Why have we been so willing as a people to give away out freedoms?

A: Historically, we have always accepted curtailments of other people's freedom during wartime. During the Civil War Abraham Lincoln, of course, suspended the writ of habeas corpus and locked up newspaper editors and a Republican member of Congress. The public accepted it, because they didn't think it was they who would be locked up. During World War I, Attorney General A. Mitchell Palmer in the Palmer Raids locked up over 1,600 Eastern European Jews from Baltimore to Boston. They were never charged with crimes. They never saw a judge. They never saw a jury. They never saw a courtroom. They were called anarchists.

During World War, not FDR ­ he didn't have the courage to do it himself ­ had an unknown general in California lock up 110,000 Japanese Americans ­ not Japanese, Japanese-Americans -- because of his racist views that they could not be trusted to enjoy the liberty that the rest of us had. They were, of course, as American as he was.

During the present war on terror, about 875 Arab-American males have disappeared from our streets. I mean literally disappeared. There is no docket. There is no record of what happened to them in the courtroom. The dockets have been sealed and the good members of the press have been denied access to the records of what happened to these people.

In 1988, a Republican president, Ronald Reagan, and a Democrat Congress enacted the Civil Liberties Act of 1988, which condemned arresting people without trial; which condemned incarcerating people on the basis of their race, ethnicity or religion; which compensated those still living who had been incarcerated in World War I or World War II a measly $20,000 a head; and which proclaimed that this would never happen again in the American system of government.

But guess what? It has happened again. We never voluntarily give up our own freedoms, but we accept it when we have the not-in-my-backyard-attitude that it is going to happen to someone else.

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