Judge Andrew Napolitano is one of American media’s most tenacious defenders of Americans' rights. His official title at Fox News, where he appears regularly on Fox and Friends and The Big Story, is “Senior Judicial Analyst.” But at the often Bush-besotted network, the decidedly skeptical Napolitano thinks of himself more as “House Civil Libertarian.”
He’s the youngest life-tenured Superior Court judge in New Jersey history, and a former teacher of constitutional law at Seton Hall Law School. He also writes books alerting Americans to how their own government threatens their liberties, including The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Nick Gillespie interviewed Napolitano for our March 2005 issue.
Napolitano’s latest book is the pugnaciously and provocatively titled A Nation of Sheep. The book is certainly sharply critical of the Bush administration for its assaults on our freedom and privacy. But Napolitano also provides valuable historical context, showing there’s little new under the sun when it comes to the tendency of power to expand, even in a nation explicitly built to keep government powers as tiny oceans in a sea of individual rights.
He tells of Daniel Ellsberg’s brave stance against government wartime secrecy during Vietnam, former Ohio Congressman Clement Vallandigham's standing up to Abraham Lincoln (and subsequent arrest and banishment after a military commission trial for doing so), and Vermont Congressman Matthew Lyon’s arrest for insulting President John Adams.
The book is wide-ranging in history and subject matter, containing entertaining (and often blood-curdling) takes on potential threats from ever-present surveillance cameras, the Transportation Security Administration, the government’s insistence that it can grab any private information a company may have collected about you, press pusillanimity, and our government’s yen for torture. It hits the pleasing tone of all-American barn-burning dudgeon that animated the Americans who, enraged with Lincoln’s treatment of Vallandigham, as Napolitano writes, “rioted and burned the local Republican building, cut down telegraph lines, and destroyed a bridge.”
I spoke to Judge Napolitano by phone on November 12, touching on some of the matters that most alarm him these days about America, a nation that has in his estimation become alarmingly close to a nation of sheep.
reason: Your book contains over 200 pages of alarming stuff (except for the part in the back where, for your readers convenience, you reprint the Declaration of Independence and Constitution), but let’s touch on some specific ills affecting the health of constitutional liberties in America. What, for example, is the “special needs exception” to the 4th Amendment that 2nd Circuit Court of Appeals Judge Chester Straub invoked, as you discuss in chapter 2?
Judge Andrew Napolitano: Of course, there is no “special needs exception,” not in case law, not in the Constitution. But it’s an argument that big government makes whenever it feels constrained by the document that created it, namely the Constitution.
The government has dispatched its lawyers into federal court to make this so-called “special needs” argument. It says to the court—it’s the sort of pedestrian argument you and I hear every day—"Oh, the Constitution was written 230 years ago. These guys couldn’t have anticipated planes into buildings or wiretaps. They were not the subject of ethnic and religious hatred like we receive from Islamo-fascism today." So the “special needs” of public safety require us to find in the Constitution—and they never admit they are going around the Constitution—to find authority to do a, b, c, and d, which might be, oh, wiretap without a warrant, monitor the keystrokes on citizens’ computers, open mail, and use self-written search warrants.
And some judges regrettably have accepted this argument. [Former Attorney General Alberto] Gonzales did not make it up. Government’s been arguing this for years, though the phrase “special needs” is not a term of art in law; it’s just a handle used by federal prosecutors when they do not want to uphold their oath of office to uphold the Constitution.
reason: The Patriot Act seems to be a special bete noire of yours. What’s the problem with it?
Napolitano: The Patriot Act’s two most principle constitutional errors are an assault on the Fourth Amendment, and on the First. It permits federal agents to write their own search warrants [under the name “national security letters”] with no judge having examined evidence and agreed that it’s likely that the person or thing the government wants to search will reveal evidence of a crime.
Remember that the British government permitted its soldiers to execute self-written search warrants. They called them “writs of assistance,” and they were one of the last straws that caused American colonist to rebel. It’s bitterly ironic that 230 years later a popularly elected government would authorize its own agents to do the same thing that when a monarchy did it, we fought a war of rebellion in reaction—which we won!
Not only that, but the Patriot Act makes it a felony for the recipient of a self-written search warrant to reveal it to anyone. The Patriot Act allows [agents] to serve self-written search warrants on financial institutions, and the Intelligence Authorization Act of 2004 in Orwellian language defines that to include in addition to banks, also delis, bodegas, restaurants, hotels, doctors' offices, lawyers’ offices, telecoms, HMOs, hospitals, casinos, jewelry dealers, automobile dealers, boat dealers, and that great financial institution to which we all would repose our fortunes, the post office.
So FBI agents can write their own search warrant with just the permission of their superior, no judge at all, nobody at the main Department of Justice, and serve it essentially on any entity they want, and if they serve this search warrant on your doctor, lawyer, grocer, or mailman, and that doctor, lawyer, grocer, or mailman tells you they received it, then that doctor, lawyer, grocer, or mailman, can be prosecuted for a felony, face five years in jail. What part of the First Amendment’s “Congress shall make no law abridging the freedom of speech” do they not understand?