Since joining the Fox News Channel as a legal analyst in 1998, former New Jersey Superior Court Judge Andrew P. Napolitano has emerged as one of America’s most prominent champions of limited constitutional government. He’s the author of five bestselling books, including Constitutional Chaos and Dred Scott’s Revenge: A Legal History of Race and Freedom in America, the regular fill-in host for Fox News superstar Glenn Beck, and the host of his own popular FoxNews.com show, FreedomWatch.
In his latest book, Lies the Government Told You: Myth, Power, and Deception in American History, Napolitano takes a broad look at the government’s long war on the truth. Associate Editor Damon W. Root spoke with Napolitano in his office at Fox News headquarters in New York.
Reason: You begin your book with the Declaration of Independence and end with the debate over ObamaCare, hitting almost every point in between. Has the government been lying to us all along?
Judge Andrew Napolitano: Yes, the government has been lying to us all along. Think about it. The very same generation—in many instances the same human beings—that wrote “Congress shall make no law...abridging the freedom of speech” also wrote in the Alien and Sedition Acts just 10 years into the country that you can go to jail if we don’t like what you say. These guys did things which were directly contrary to first principles. And among them was the obviously erroneous, self-serving proclamation that “all men are created equal.” They weren’t! I mean, half those guys owned slaves, even the person who wrote that phrase owned slaves. He didn’t buy them—he inherited them—but he owned them.
Reason: You emphasize the role of crisis and war in government lying.
Napolitano: War is the health of the state. That is a self-evident truth. Because in wartime people unite behind whoever the commander in chief is. They part with their wealth more easily. They accept restrictions on their personal behavior. We now know—economists have demonstrated—that none of the rationing during World War II was necessary. That wasn’t done to have coffee or sugar or leather for the soldiers. That was done to keep people at bay, to give them a feeling that they were cooperating in the war effort. Any type of crisis is an opportunity for the government to take liberty and take property and turn those into power for itself.
Reason: Each of your chapters is devoted to a different government lie. I was struck by how many of the lies were direct quotes from the Declaration of Independence or the Constitution.
Napolitano: The biggest lie is not one of those chapters, it’s all of the chapters taken together: lack of fidelity to the Constitution. When they take an oath to uphold the Constitution they don’t really mean it. Just the other day, this congressman from Illinois, Phil Hare, said “I don’t worry about the Constitution.”
Reason: Rep. James Clyburn once told you that the Constitution doesn’t apply to most of what Congress does.
Napolitano: Clyburn, bless his soul, was candid but wrong. “Where in the Constitution is health care prohibited to the Congress?” he said. This was prompted by a question on-air from me about where in the Constitution is the federal government authorized to regulate health care. When he turns that around, he misunderstands the Constitution. The Congress isn’t a general legislature that can regulate any behavior, tax any event, it’s a legislature of precisely limited powers.
Reason: It was a rare example of some honesty from the government.
Napolitano: You know what he said later in that interview? He said we do what we think the people want and let your buddies in black robes—referring to my former colleagues on the bench—worry about whether or not it’s constitutional. Again, he’s being very candid. That allows members of Congress to go back home and say, “We got you this. The courts took it away.” So they win both ways. They don’t have to pay for it, because the courts took it away, and they win political support because they tried to give it to the people.
Reason: You agree with Rep. Clyburn in a way. You call for judges to be “constitutional activists.” That’s very different from a lot of conservatives, who advocate judicial restraint.
Napolitano: I am not a conservative, I am a libertarian. I believe in the primacy of the individual over the state. I believe in ironclad fidelity to the Constitution and I believe in the Natural Law, that there are areas of human behavior that are utterly and totally immune from government regulation. Just because the majority rules doesn’t mean the majority is right. That’s why we have an independent judiciary. It is to be the non-democratic or even anti-democratic branch of government. Otherwise there would be nothing to prevent the tyranny of the majority from taking our liberty or property just because they wanted it.
Reason: Is that a useful check on the government’s lies?