Americans: Sheep to the Constitutional Slaughter?

An Interview with Judge Andrew Napolitano


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?

This creates a Soviet-style conundrum for the recipient, who can't even tell his or her lawyer or general counsel about getting the search warrant. You can't hire outside counsel to challenge it, you can't mention it to your spouse on the pillow, to your priest in confession—not even to a federal judge in a federal courtroom where all language except perjury should be permitted. This is a conundrum the likes of which government has never visited even under the Alien and Sedition Act. If they prosecuted you for criticizing [President John] Adams you could complain about it to your heart's content without being charged with another crime.

reason: The Patriot Act was sold as a necessary protection from terror. How has that worked out?

Napolitano: How many people has the DOJ convicted in a jury trial for terrorism based on evidence obtained from the Patriot Act? Zero. They've gotten people to plead guilty, to fold, and convicted many on drug trafficking, white slavery, prostitution, gambling, and political corruption, but haven't gotten a single [terror] case where they presented evidence in a public court before a judge and jury and the jury found a defendant guilty under evidence obtained under Patriot Act.

The reasons stated by [Attorney General John] Ashcroft and the House Republican leadership for there being no debate on the Patriot Act was that terrorists were under every bed, behind every toilet, and inside every refrigerator. Therefore the Patriot Act was so necessary to keep the country safe that there was no time for debate. The most sinful aspect of its passage was how members of the House were not permitted to read it. It was posted on the House Intranet for 15 min [before the vote] and it's 315 pages long. I read it twice, and it took me 20 hours each time. And you need in front of you not just it, but lots of other statutes, the full U.S. criminal code, to process it. It does lots of amending of other statutes, so you need to reread [those] statues to figure out what government has done by amending that statute.

I was speaking in the Midwest—I don't want to tell you where, somewhere in the great Heartland—two weeks ago and at the end of my speech, after I said many of these things I'm saying here and in my book, there was a congressman in the audience. He and I socialized a bit, and he said, "Judge, I'm a little ill at ease. I didn't know until hearing you tonight that the Patriot Act permitted self-written search warrants and criminalized speech about receiving them, and I voted for it twice."

And I said—knowing how he was going to answer—I asked, "Didn't you read it? You voted on it." No, he didn't have time, he only read the summary. And he didn't remember the summary talking about self-written search warrants and criminalized speech. He told me many of his colleagues were in the same situation. I said, "WRONG—all your colleagues are in the same situation! No one in the House except maybe leadership read the Patriot Act you voted on!" It's abominable for the government to tamper with our basic liberties—but it's inconceivable that they would do so without any debate.

reason: Yet it happened. You called your book A Nation of Sheep, which indicates a pretty low opinion of the people who would let their elected representatives do this to them. But Bush's approval ratings are pretty low—it seems as if there is something about his administration that's begun to piss people off. You must have a lot of opportunity to hear from the public with your status as a big public voice on these issues—how upset are Americans about all this?

Napolitano: There is more widespread feeling [against these assaults on our liberty] than you would think, though I have discovered that widespread feeling after coming up with the title of the book! One place I've discovered a lot of it I didn't expect…I speak to lots of right to life groups; I describe myself as "fiercely pro-life," and I've found among right to life groups tremendous disdain with the president and the Congress about abuse of the Constitution, much to my surprise. If while talking about Roe v. Wade I make a comment about Bush and Congress tampering with the Constitution, I'm interrupted with a standing ovation at right to life gatherings, so there is this undercurrent of anger [over the Bush-era assaults on the Constitution].

Another platform for that undercurrent is the campaign of Ron Paul. Congressman Paul has rejuvenated almost single-handedly the Goldwater wing of the GOP. Now Reagan tried, before [James] Baker and his boys advised him on how to behave. Now, I loved the man, but if you look at his record and rhetoric, they are two different things. But Ron Paul had made it legitimate again for small government, maximum individual liberty, Goldwater Republicans to come forth and complain about big government, and I am the recipient of lots of those complaints.

Now, for the most part the president and his colleagues in both parties have succeeded in scaring the daylights out of people. Government grows in wartime because people are afraid, and they accept the satanic bargain that government offers: Give us your liberty and we will keep you safe. Many people think that when government is suppressing speech or privacy or fair prosecutions, that since those usurpations are so drastic that they must be keeping us safer.

But when the president says that his first job is to keep us safe, He is dead wrong. Read the oath of office: His first job is not to keep us safe, but to keep us free [by upholding the Constitution]. When you have this value judgment between freedom and safety, I'd rather have freedom with danger than slavery with safety.

But the supposed tradeoff when it comes to civil liberties isn't really there. Geoffrey Stone of the University of Chicago Law School spent five years reading every judicial opinion in the history of the United States on freedom of speech. Of all the cases of people prosecuted and convicted of violating some law that regulated speech, his conclusion is there is not one, not one single instance in all American history, where America's security was adversely affected because of too much free speech. When government says it is keeping you safer by criminalizing speech, it's a canard. They are making their own job easier by criminalizing speech because they have less dissent to confront.

reason: It seems like you really stand out from the flock at Fox, a network with a reputation for being far more supportive of Bush than you are. In fact, in your book you are downright hostile, even referring to "impeachable offenses."

Napolitano: The arguments I am articulating here are arguments I have made in the hallways of Fox every day. But I love my job here and my role as house civil libertarian. I am able to do at Fox what I hope to do with this book—help people awake from lethargy and a naive trust of government and question whether or not a government has the power to take rights away. I argue it doesn't—that these rights are natural and we should be debating these issues before our rights are taken away.

My favorite part of working at Fox, and my books, is the arguments I present about the difference between positivism and natural law, between those who believe all rights come from government, and the natural law position which says that rights come from our humanity, not from government; that we are created by God in his image and likeness, and as He is perfectly free, our rights to speech and thought, and to say what we think and write what we say, to develop our personality, to travel, to privacy, are all as natural as the fingernails on the ends of our finger.

This is more than an academic debate. If our rights come from government, then the Patriot Act is lawful and constitutional because the government that gives freedom can take it away just by having the president sign a bill into a law. But if rights come from our humanity, as I argue almost every day on Fox, then government cannot take freedom away absent due process and a fair trial, where you are charged and convicted of violating someone else's freedom.

The president had said he believes in natural rights. Unfortunately when he signs these bills that take away our rights, he reveals he either doesn't know what he's doing or he doesn't really believe in natural rights. The Patriot Act is not only unconstitutional, it's unnatural, since it purports to take away that which naturally belongs to us.

reason: In chapter six, you discuss the very alarming "National Security and Homeland Security Presidential Directive 20/51" and the John Warner Defense Authorization Act of 2007. What's so bad about them?

Napolitano: Those basically allow the president to declare martial law whenever he thinks there's a state of emergency. Then he—he or she—can use the military to enforce ordinary criminal law and even suspend the authority of state criminal enforcement agencies. This is wildly, fantastically unconstitutional because it allows one human being by declaring emergency–like Pervez Musharraf just did—to suspend rights guaranteed by the Constitution, and Americans don't even know; there was very little debate or awareness of this.

reason: I noticed that "he or she" in your previous statement. Have you made any headway with your Republican friends on the matter of, well, they might believe in this whole "war on terror" and trust Bush needs these extraconstitutional powers to protect us, but what about when a president they don't trust wants to use them for goals they don't believe in?

Napolitano: Bill O'Reilly defended Bush on his declaration of three Americans as enemy combatants, before the Supreme Court told him he can't do it—and Bush refused to even say why—but Bill said "I trust him, it's good for him to do that."

I asked him, "Would you give that power to Hillary Clinton? She could declare you an enemy combatant and dispatch you to Guantanamo." He just said, "Would you come and visit?" I said, "No….they'd keep me down there too!"

So many of my Fox colleagues, whom I love working with, have such trust and faith in the heart and head of President Bush. But look at the calendar: He'll be Mr. Bush in 14 months, and unless it's Ron Paul, God knows what his successor will do with the powers Congress had purported to give him. And I say "purported" because they don't have the right to actually do all the extraconstitutional things they've done.

Senior Editor Brian Doherty (bdoherty@reason.com) is author of This is Burning Man and Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.