As the highly rated home to the likes of Abu Ghraib apologist Sean Hannity and the document-shredding constitutional scholar Oliver North, the Fox News Channel is about the last place you think of when it comes to quaint values such as due process, defendants' rights, and restrained government. Yet Fox is home to television's fiercest defender of civil liberties, Judge Andrew Napolitano, the network's senior judicial analyst and a regular on The Big Story With John Gibson,Fox and Friends, The O'Reilly Factor, and other programs. The 54-year-old Napolitano, the youngest life-tenured Superior Court judge in New Jersey history, is an eloquent and outspoken critic of government abuse of power, whether the topic is widespread "testilying" by cops, eminent domain abuse by local and state officials, or the unilateral detention of suspects at Guantanamo Bay.
To get a sense of the judge's commitment to principle, consider this representative exchange between Napolitano and Fox's Tony Snow on a December installment of The O'Reilly Factor.? The topic: the State Department's restrictions on the Hezbollah-owned Al-Manar TV.
Snow: Even Supreme Court cases that try to protect the right to say controversial things say that if there's direct incitement [to violence], there can be reason [to ban speech].
If you say to somebody, "Go kill him," and there's an anticipation that somebody's going to do it, that's not legal.
Napolitano: This is speech, pure and simple…Here's the law. Here's what is legal. All?? speech is absolutely protected, no matter what it says, when there is time for more speech to rebut it. The First Amendment presumes that we rational adults, Americans, will decide what we want to watch on television and read and listen to.
Napolitano's introduction to political power run amok occurred in high school, when he worked as a summer page for Rep. Peter Rodino (D-N.J.), who gained national fame for his work in bringing Richard Nixon to account during Watergate. Educated at Princeton University and Notre Dame Law School (where he took a particular interest in natural law theory), the never-married Napolitano has taught at Seton Hall, practiced law, and served as vice president and general counsel of Hackensack University Medical Center. After working with Fox President Roger Ailes at CNBC, he went over to his current network in 1998.
He is the author of the new book Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Books), currently perched near the top of Amazon's ratings. It is a sweeping, relentless, and eminently readable indictment of the reckless disregard for individual rights exhibited by law enforcement, elected officials, and the nation's courts. As compelling, it describes Napolitano's personal odyssey from his days of supporting Richard Nixon to becoming a "born-again individualist" after eight years on the Garden State bench, which he left in 1995. Dedicated to Thomas More, the great patron of speaking truth to power, it should be required reading in post-9/11 America.
A frequent presence on the nation's op-ed pages (and an occasional contributor to Reason Online) and an even more dynamic, animated presence in person than on the small screen, Napolitano sat down to talk with Editor-in-Chief Nick Gillespie in December at Fox News' Washington, D.C., offices.
Reason: Your book is called Constitutional Chaos. What do you mean by that term?
Andrew P. Napolitano: The full title is Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. We are in a fit of constitutional chaos when the government views constitutional guarantees as discretionary. As Americans, we order our lives on the belief that we have extraordinary freedoms. We believe those freedoms don't come from the government. They come from our humanity. The government doesn't give freedom; the government under the Constitution is restrained from interfering with it. I can basically say whatever I want about the government. I can basically travel wherever I want to go. I can basically worship however I see fit. If the government comes to the view that those freedoms are discretionary, no matter how noble the stated [reason to restrict them] may be, then we're in a state of constitutional chaos. We will not be able to order our lives based on freedom. We won't know who will be prosecuted or who'll just be swept away.
Reason: So where's the trouble?
Napolitano: Chaos in our criminal justice system comes about when the government acts as if it is entitled to a free pass on enforcing the laws. When people who work for the government, whether they're traffic cops or FBI agents, prosecutors or bureaucrats, act with the self-confidence that they are not obliged to obey the law–
Reason: Give me a quick example of that.
Napolitano: I am walking out of Mass one day in Washington Square Park in lower Manhattan, and a scruffy guy with some others like him comes up to me and offers me marijuana. I tell him to take a hike. He turns over the collar of his jacket and shows me his New York Police Department detective badge and says, "Have a nice day, Your Honor," so obviously he [and his fellow undercover cops knew who I was]. What were they doing? Selling drugs. Now, there's no exception in the statute. They wanted me to buy drugs (which don't tempt me at all, even though I believe that they should be legal). Their chances of hitting on me were none and none. They just recognized me coming out of Mass, but they were committing a crime in an effort to enforce the law. Selling drugs and attempting to sell drugs in the presence of children, mind you. When the government breaks the law in order to enforce the law, it perverts the process. It becomes a law unto itself. It encourages others to become a law unto themselves, and it becomes a precedent for the government to do that again and again and again.
The government routinely bribes witnesses by giving them something of value in order to influence the witness's testimony. It could be paying the witness's bills–alimony, rent, or mortgage. It could be a direct cash payment to the witness. It could be, and this is the most typical way, forgiving the witness a crime he has committed. When the government does that, it perverts the intellectual integrity of the trial process. It no longer becomes a search for truth. This tactic is of a post?World War II vintage. It is now taught in law schools as well as specialized schools for prosecutors that the government runs.
The government does that for two reasons. One, I think it honestly believes, and there's a lot of data to support this, that if you cut the head off [of a criminal enterprise], you're going to destroy the organization. The second is that a lot of prosecutors are interested in victory, not truth, and they're interested in a high-profile victory because it enhances their own careers and their own standing in the law enforcement community.
One of the most extreme examples involves Sammy "The Bull" Gravano. He testifies against mobster John Gotti. Sammy admits to 19 murders. Nineteen! Gotti is charged with conspiracy to commit one. The government forgives 19 of Sammy's in order to get him to say what the government wants him to say about Gotti. How do we know that he was telling the truth? His incentive to please those who are bribing him is an absolutely irresistible temptation to be forgiven 19 murders and to wipe the slate clean.
Reason: That story has a really happy ending, too, right?
Napolitano: Gotti's convicted, and he dies in jail. Gravano enters and then leaves the witness relocation program and goes back to a life of crime. He imports Ecstasy from the Middle East, and he's now serving 20 years. He couldn't take freedom.
Reason: I hate to harp on cases involving Italians, Judge, especially since my mother's maiden name was Guida. But let's talk about the Philly mobster Little Nicky Scarfo.
Napolitano: The government devised a way to insert software into Little Nicky's laptop computer that would record every keystroke he made. Generally, if the government is interested in some document in that computer that it believes is evidence of a crime, it can go to a federal judge, present its evidence–we call it "probable cause"–and get a search warrant. That wasn't good enough for the government. The government wanted to capture every one of Nicky's thoughts on everything, every single keystroke. So the government persuaded a federal magistrate to issue a warrant for that. Then it devised this software and persuaded the judge to allow the government to break into his home and make it look like a robbery. They break in. They put the software in his laptop. He comes home. He calls the local police. The FBI has not told the local police, so everybody thinks it's a break-in.
Ultimately, of course, it develops that they have recorded all of his keystrokes. They now say to him, "Look at what we've got on you. Spill the beans or we'll spill all of this." Nicky had some pretty bright lawyers that said, "Hmmm, how'd you get that information? We'll spill the beans on this new software." The government recoiled and said you can't reveal the software because of "national security." He eventually pleaded guilty to a low-level crime. It was a deal that the government cut. They didn't realize that by doing this to Nicky they would expose this means of law enforcement–burglary and seizing a lot more than any search warrant constitutionally could offer.
???? The idea of the government capturing every thought of a person, no matter how nefarious, is specifically condemned by the Fourth Amendment, which says you've got to ask for a specific item. There is no statute or case law or constitutional principle that would contemplate or authorize what the government did here. And let me tell you, if they did it to Little Nicky Scarfo, they could do it to Little Nicky Gillespie.
Reason: What's your case against the USA PATRIOT Act?
Napolitano: Let's put aside all of the procedural problems with enacting it. Forget about the fact that there was no debate. Forget about the fact that most members of Congress didn't even have an opportunity to read it. It is a direct assault on at least three amendments to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth Amendment. The PATRIOT Act legitimates the notion that if we give up certain freedoms, the government will keep us safer. I reject that notion from a moral and legal point of view. I also reject it from a practical point of view. It doesn't work. The government doesn't need our freedoms to keep us safer. No one–no lawyer, judge, or historian–can point to a single incident in American history where national security was impaired because someone insisted on their right to free speech or their right to privacy or their right to due process.
The PATRIOT Act encourages what the government calls "national security letters"–basically, self-written search warrants. It violates the Fourth Amendment, which prohibits self-written search warrants. The PATRIOT Act and two of its predecessors, the Foreign Intelligence Security Act of 1977 [FISA] and the Electronic Privacy Act of 1986, authorized the government to obtain search warrants by bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a person need only satisfy her or himself that the person under investigation is a threat to national security. The agent doesn't have to demonstrate evidence to a judge.
FISA began the notion of search warrants on less than probable cause. Prior to that, if the government wanted to search a place and look for a person or a thing, it had to go to a judge and persuade the judge that the thing sought is evidence of a crime, and the person who put the thing there, whether it's a document or contraband, more likely than not was involved in criminal activity. The fancy word for this is probable cause. There's judicial intervention moderating and tempering the government's desire. That's specifically laid out in the Fourth Amendment because of the Framers' revulsion at the king's soldiers going into their barns and through their papers and things with what were effectively self-written search warrants.
FISA did not authorize self-written search warrants, but it [created special courts that] authorized search warrants on less than probable cause. The theory was the people being searched for in these cases are foreign agents. If we find them, we won't prosecute them because we didn't have probable cause to get the warrant, but we'll kick them out of the country because they're a danger to us. Constitutionally, that made some sense. It actually respected the rights of those foreign agents and anybody else who might innocently have been caught up in the surveillance.
The '86 law took that one step further and said it's too easy for people electronically to transfer funds from one account to another. It's too easy for them to learn that we're on their trail, so we want to give the FBI the power to get financial information without going to the courts first. The '86 act authorized national security letters. They were limited to financial institutions, and the target had to be a foreigner. Not a foreign agent anymore, but anyone who was foreign or anyone involved in any organized criminal activity–mob-related activity, drug-related activity, or some involvement with a foreign country.
Reason: And the national security letter merely says that I'm investigating this person on suspicion of criminal activity or that I want the records of this person. And because of national security reasons, you have to give me x, y, and z.
Napolitano: Correct. You simply serve this on the financial institution. The financial institution knows that they have to preserve the requested record. Under the Electronic Privacy Act, though, the financial institution could call the person whose bank account was being investigated and say: "We've got a subpoena, but it's unlike any subpoena we've ever seen before because it's not signed by a judge. We're going to honor it in 10 days. If you want to challenge it, challenge it." And you could still go to a judge and challenge it. It wouldn't be the judge who issued it because it wasn't issued by a judge, but you could go before a federal judge, and the government would have to justify the so-called national security letter.
Now comes the PATRIOT Act and the following additions: The recipient of the request cannot tell anyone about it, so the financial institution can't tell you it got this request. It must turn the information over immediately, and the FBI is not required any longer to demonstrate even in its own notes that the person that it's going after is a foreigner. It's anyone the FBI thinks may provide information about terrorism. The government is now permitted to violate the Fourth Amendment by writing its own search warrants. It is permitted to silence the recipient of the search warrant, which violates the First Amendment. And by this silence, it de facto violates the Fifth Amendment, which guarantees you due process because due process means you can't have anything taken from you–a document, your wealth, or your freedom–without a trial.
It gets worse: Two-and-a-half years after the PATRIOT Act was signed, the Intelligence Authorization Act of 2004 is signed. It redefines the term financial institution. Under the rubric of "financial institution," it has included a tremendous number of [businesses] that are not financial institutions, upon which the government can now serve self-written search warrants. These include hotels, casinos, car dealers, jewelry stores, real estate offices, insurance agents, lawyers, bodegas, kiosks in a mall where you would buy a magazine or where you would wire money, and the post office.
Reason: Is there any reason to believe the PATRIOT Act has helped keep us safe from terrorism?
Napolitano: We have not been attacked since 9/11. Who knows why? We wiped them out of Afghanistan. We inflicted enormous setbacks on them in Iraq. The government can take all the credit that it wants on the basis of the PATRIOT Act, but the government cannot point to a single successful prosecution for terrorist activity where the evidence obtained was under the PATRIOT Act–at least a successful prosecution that wasn't overturned eventually. The PATRIOT Act creates one new independent crime, the crime of speaking. The rest of the PATRIOT Act does not create substantive crimes. It gives tools, unconstitutional tools, to law enforcers. They have used those tools, but they haven't gotten a single prosecution for terrorist acts on the basis of it. They've gotten five prosecutions having to do with political corruption and drugs. One of the things that John Ashcroft gave to Congress in return for no debate was the sunset clause. The other was that the PATRIOT Act would only be used in the war on terror.
Both of those promises have been violated. We know from newspaper accounts that the PATRIOT Act was used to gather information on political corruption in Las Vegas and against drug dealers elsewhere. The Intelligence Reform Act of '04 gets rid of one of the sunset clauses.
Reason: Let's talk about the evolution of your views. During your college years in the late '60s, you wore a "Bomb Hanoi" T-shirt and supported Richard Nixon's law and order campaign. You write that eight years on the bench as a superior court judge in New Jersey turned you into a "born-again individualist," and Fox News Channel viewers can see you regularly argue in favor of restrictions on cops and law enforcement more generally. How did serving on the bench change you?
Napolitano: I had a realization that many [law enforcement agents] were lying. Some of them would acknowledge, not to the extent that I would have them charged with perjury, but in the wink and the nod in a conversation with them afterwards, "Well, we almost don't care if you found out that we kicked in the taillight." "We knew," they'd suggest, "from the profile–Mercedes Benz, New York plates, African-American driver, coming off the George Washington Bridge–it was more likely than not that drugs were in there, and we don't even care." They took an oath to uphold the Constitution, and they're violating that oath when they violate the rights of the driver of that car.
I've always considered myself a Barry Goldwater Republican. I want the Democrats out of my pocketbook, and I want the Republicans out of my bedroom. I believe that the Constitution and the natural law mandate that the individual is greater than the state and that individual rights are the whole reason for our success in the Western world. Our cultural successes, our enjoyment of freedom, our financial successes, are all due to unleashing individual initiative and guarding and protecting individual liberty.
On many issues, I agree with conservative thought. It's not society that causes crimes; individuals cause crimes. I believe abortion is murder. I believe the Second Amendment protects an absolute right to keep and bear arms. I believe affirmative action based on race is an absolutely unconstitutional as well as immoral policy. I also believe that government is best which governs least and that the Constitution only gives 18 specific enumerated delegated powers to the federal government.
I believe that Congress and the president and the Supreme Court have grown to an unrecognizable point, where we now have members of Congress that think they can solve every problem under the sun. So Sen. John McCain [R-Ariz.], for whom I have a lot of respect, said to [New York Yankees owner] George Steinbrenner, "Don't you dare pay Jason Giambi, because we heard a rumor in a newspaper that he told a grand jury that he once used steroids, and if you do, we're going to make sure you can't." What are they going to outlaw next? The speed of Roger Clemens' fastball because it might hurt the batters' wrists? I mean, this is an attitude of Potomac fever that the government thinks we can legislate about and solve every crime and every problem.
Reason: Let's talk about natural law and positivism. Sketch the two camps and why you believe what you do.
Napolitano: Scholars and lawyers and jurists and people interested in this have always debated what is the source of our rights. There are many, many schools of thought, but they basically fall into two categories. One says that our rights come by virtue of our humanity because we are created in God's image and likeness. Because God is perfectly free, he has instilled in us all the yearnings for freedom that we have: freedom of thought, freedom to develop one's personality, freedom to express oneself, freedom of movement, freedom of religion, freedom of association, etc. That school of thought is known as the natural law. Thomas Jefferson, who wrote the Declaration; James Madison, who wrote the Constitution; and virtually all the Founding Fathers, even though some were deists and some were atheists, they were to a person believers in the natural law.
?The other school of thought is sometimes called positivism, sometimes called legal realism. It basically says that the law is whatever the lawgiver says it is. As long as the lawgiver follows its own rules, whatever it says is the law. So positivism would say the majority in a democracy always rules. There are no minority rights because there are no brakes on the majority will. If the majority wants to get rid of the First Amendment, the majority rules; there is no First Amendment. Therefore, there's no protection for freedom of speech. If the majority wants to take property belonging to person A and give it to person B because the majority rules, the majority can do that because, again, there are no natural rights that would allow person A to keep his property against the will of the government.
The attraction to positivism is it is pure democracy. The majority literally always rules. Or whoever is in power always rules. Positivism didn't rear its head successfully, in my view, until the administration of Franklin Delano Roosevelt, when we took a decided step toward a centralization of power in Washington and ultimately toward many socialistic programs that we now have because FDR was the ultimate positivist who believed whatever law he signed was a good law and there were no brakes on that.
[The FDR era] began, in my view, the dark part of American history where the federal government believed that it could solve any problem that was national in scope, irrespective of whether it was a federal problem. A federal problem is one arising under the 18 specific enumerated powers given to the federal government under the Constitution. A national problem is something that exists in New Jersey and California and Texas and Illinois. But just because it's national doesn't mean it's federal and therefore can be addressed by the federal government.
Reason: You contrast natural law with positivism, which you defined as pure democracy, and you said the Constitution reflects a natural law mind-set. Yet under the Constitution, we can repeal the First Amendment. As a natural law advocate, you would not feel compelled to follow that law, would you?
Reason: So this helps to explain why you dedicate your book to Thomas More.
Napolitano: I dedicate the book to St. Thomas More and cite the most frequently quoted passage from A Man for All Seasons. More is basically saying everyone is entitled to due process, rights are not discretionary; and his son-in-law challenges him, saying, what about the rights of the devil? And More says, I would give the devil his due because when they come after me, I want them to give me my due. Every human is entitled to the protection of the law.
Reason: You said we entered a dark period in American history.
Napolitano: We did in 1932.
Reason: But wouldn't you agree that if we're talking about freedom of expression, people are much freer to express themselves now than they were in 1932? With or without the PATRIOT Act. For cultural and technological reasons, you can say whatever you want in a wider variety of contexts. You can disseminate information and points of view today that were unimaginable in 1932, a year in which you couldn't even legally publish Ulysses or Lady Chatterley's Lover. Something similar goes for lifestyle, too, and other parts of society.
Napolitano: In terms of the government control of our lives, in terms of the percentage of our income that the government takes from us, in terms of the types and the areas of human behavior we let the government regulate, we are infinitely less free. And as Jefferson once said, it is in the natural order of things that the government should be greater and human
Women have much more freedom. African Americans have much more freedom. Gays have much more freedom. The discrimination that was rampant, and often caused by the government, 40 or 50 or 60 years ago–there's been progress in those areas. But the destruction of federalism, the centralization of power in Washington, the belief that Washington can regulate all aspects of our lives will, if not checked, lead us to a totalitarian form of government. Freedom is the power and ability to obey your own free will and conscience rather than the free wills and consciences of others.
Reason: You said abortion is murder. Should it be regulated by the state or should it be prohibited by the state?
Napolitano: Absolutely it should be prohibited, just the way all unjust killings are prohibited.
Reason: Should doctors go to prison as murderers?
Reason: First-degree murder?
Reason: Should they get the death penalty–
Napolitano: I don't believe that the state has the moral authority to execute, so I don't believe in the death penalty.
Reason: But you do think that doctors who perform abortions should be put in jail as murderers? Every bit as much as Scott Peterson?
Napolitano: Yes. By a state government, not by the federal government, because the Constitution doesn't authorize the federal government to prosecute murderers. Roe v. Wade is wrong because there's isn't a scintilla in the Constitution or its history to justify federal legislation on abortion. It would then be up to the state of Kansas to allow it and Pennsylvania not to allow it.
Reason: How do you feel about Bush's likely appointments to the Supreme Court?
Napolitano: I am optimistic about President Bush's appointments because I agree with some of the deep libertarian strains of his favorite justice, Justice Scalia. When the government told the court earlier this year that the president could lock up an American and throw away the key, that the military could take people to Guantanamo Bay and do what it wanted with them there because the Constitution didn't apply, the Court rejected those notions by a vote of 8 to 1. The strongest pro-liberty argument, the strongest argument against this extraconstitutional behavior, was written by the most conservative justice, Antonin Scalia. So there is hope, I think, that people of like mind [will be appointed to] the Court.
Reason: Who would you like to see on the Supreme Court?
Napolitano: I would like to see people who believe that the Constitution means what it says and take rights seriously. Jay Michael Luttig is a judge in the United States Court of Appeals for the 4th Circuit, a former clerk for Justice Scalia. He believes the Fourth Amendment means what it says; the First Amendment means what it says.
Reason: How do you feel about Alberto Gonzales as attorney general?
Napolitano: He will be the first attorney general in American history, publicly, to be in favor of torture. The others may have been in favor of it privately, but Al Gonzales is in favor of it publicly. This is an untenable position to take.
Reason: What's your wish list for ending constitutional chaos?
Napolitano: First thing we should do is abolish the 16th Amendment. That would make the income tax unconstitutional, which is what it was until we enacted the 16th Amendment (even though we had two income taxes before then). That of course would starve much of the federal government out of existence.
Reason: Well, that's not going to happen.
Napolitano: Not in your lifetime or mine, but it's on my wish list. I would change the third word of the Constitution from people to states because it was the states, not the people, who enacted the Constitution. And I would put the word expressly back in the 10th Amendment [before delegated], which is where it was until it was removed by a political maneuver before the final document was sent to the states for ratification. I would define the word regulate in the Interstate Commerce Clause in its true meaning, which is "to make regular," not to control every aspect of interstate commerce. In my world, the federal government would be dependent upon the states and excise taxes for its financial wherewithal. It would be limited in its scope to the 18 powers given to it by the Constitution. The states would legislate for the health, safety, welfare, and morality of the people. All government would be required to respect the natural rights of everyone.
Reason: Besides Thomas More, who are your heroes?
Napolitano: I am a great admirer of the work of [Austrian economist] Ludwig von Mises. He was a true believer that the engine of freedom will make us safer, happier, more culturally admirable, and ultimately give us the freedom to go to heaven. I am a greater admirer of St. Josemaria Escriva de Balaguer, the founder of Opus Dei. He taught that any human being by his personal behavior can aspire to sainthood.
Reason: What's the connection between your Catholicism and your politics? The church contributed hugely to the development of natural law theory. But historically, the church has also often been an extremely repressive, anti-democratic, anti-individualistic organization.
Napolitano: The Catholic Church teaches that every human life is of potentially infinite value, that it can be saved up to the moment of death, and that each soul could present everlasting and eternal glory to God, no matter how evil the person appears. That's about as strong a statement of the primacy of the individual over the state as you could imagine.?