Injustice System

Fox News' Judge Andrew Napolitano on repealing the 17th Amendment, "constitutional activism," and his bestselling new book Lies the Government Told You.


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?

Napolitano: It's a check as long as judges do what they're supposed to do. When judges do what they did after FDR threatened to pack the Court and just supinely find ingenious ways to claim that something is interstate commerce when in fact it's just wheat grown in somebody's backyard, to declare that interstate commerce so the Congress has the power to regulate is a lie and a perversion of the judicial process.

If I were free to do so, one of the things I would change right away is to put the burden on the state to prove the morality, lawfulness, and constitutionality of its behavior. Look, I believe the only legitimate function of government is to preserve our freedom. And everything else the government does is illegitimate. But I would let it make the argument in court. What we have is the opposite. The government doesn't even have to make the argument in court. It is presumed that whatever they do, no matter what it is, no matter what it takes, no matter what it compels, no matter what it steals, is constitutional just because the government has done it.

Reason: You end the book with a call for a "major political transformation." What is the single most important reform?

Napolitano: I would repeal the 17th Amendment [which provides for the popular election of U.S. senators]. Can an amendment to the Constitution itself be unconstitutional? Yes, that one. If you read Madison's notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn't have to run as frequently, and the states lost their place at the federal table.

That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that's how they lost their power, or that's how their power was tempered. Congress believes it doesn't have to satisfy anybody. Its only recognized restraint is whatever it can get away with.

Reason: What do you make of the recent attacks on the idea of states' rights, linking it directly to evil things like the defense of slavery?

Napolitano: Probably the best act of nullification of which I'm aware, whereby a state government nullified an act of the federal government, was the state of Massachusetts nullifying the Fugitive Slave Act. The state of Massachusetts said don't even try it here. We'll prosecute anybody that kidnaps anybody else in this state. So nullification has a beneficial and salutary history as well as the sordid one.

Reason: You wrote that the notion of being innocent until proven guilty is "probably the least questioned and most believed government lie."

Napolitano: It's drawn from my professional experience. The defendant is dragged into the courtroom and the jurors assume he's guilty. Why would the government be wasting our time? When I would charge jurors—explain the law to them—I would insist on saying, "in order for him to be convicted you must be satisfied beyond a reasonable doubt and to a moral certainty of his guilt." The state always objected to that phrase ("and to a moral certainty") until I pulled out the case law by appellate courts saying that it was perfectly appropriate.

There are some horror stories in my book of people who were punished without trial. In the Herrera case, [defendant Leonel Torres Herrera] was executed, with the state knowing that somebody else had committed the crime. They just didn't care because he filed his petitions too late. Chief Justice John Roberts, when he was Judge Roberts, was asked at his confirmation hearing, does the Constitution prohibit the execution of the innocent by the state? He paused and said yes. Who could possibly pause? If it prohibits anything it prohibits that.

Reason: Are you optimistic about any of this? It's a pretty depressing book.

Napolitano: I always tell friends that my books don't have a happy ending. I am torn. The pre-Vatican II Catholic side of me reminds me that hope is a virtue and I should always be optimistic. But I'm not naive. I see what's happening.

Bonus Reason.tv Video: Watch Judge Andrew Napolitano deliver the keynote address at "Reason in D.C." in October 2007, where he declared, "George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln." (You may also watch the video here.)

NEXT: If Heart Attacks Fall in a City Without a Smoking Ban, Do They Still Make Headlines?

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  1. Good man, this judge. In a better world he would be running this country.

    1. I think in a better world, no one or everyone (semantics) would be running the country.

      1. You are talking about a much better world (anarchy). I referenced simply a better world (minarchy). In the better world Napolitano would be the great dictator.

        1. Fair enough, not a huge fan of lawyers (or law for that matter) myself. However, I really like that he brought up the nullification of the Fugitive Slave Act, its my favorite example for the ‘south will rise again’ crowd that the civil war wasn’t about state rights. Or was about my states right to impose on your state (from the southern perspective).

          1. wierd, The north went along with and enforced the fugitive slave act….doesn’t that mean that most of the north was a bunch of racist?

            Reading the history it seems like the racists weren’t too interesting in freeing slaves…just making sure they could keep consolidating power into one spot. They used the slavery issue to help convince the annoying(from lincoln perspective) peace-niks into supporting the war.

            1. That is of course the truth.

              The seceded over the Morill Tariffs. Slavery was just the excuse to invade.

              Of course the south had as much validity to secede from the north, despite the fact it held slaves, just as the Colonies had the right to secede from England, despite the fact the Colonies held slaves.

              The moral action would have been to invade, free the slaves, then leave. In simply invading and occupying they enslaved all of the south and all of the north as well.

              Lincoln ‘freed’ the slaves but destroyed government by consent, thus he effectively enslaved the whole nation.

            2. Of course, I didn’t call anyone racist or not racist (oversensitive?). You can believe in racial superiority and still find slavery immoral ( I believe one argument was that it degraded the work ethic of the white underclass). Nor did I say that the civil-war was over slavery or for that matter, that the states lack/lacked the right of succession. The point is simple: the south supported federal intrusion on non-slave holding states (of the sort that the north never proposed) via the Fugitive-slave act (weather the Morrill tariffs were fair/sensibility, its within the federal government’s constitutional powers), so that the south succeeded over some principled defense of state-right is a post-hawk pretense. Like most wars, it was about the economic interest of the upper-classes (as relates to both protectionist tariffs and slavery).

              I’m not your liberal straw-men.

          2. I always wondered about the Chartlie Daniels song that goes:

            Be proud you’re a rebel.
            ‘Cause the south’s gonna do it again.

            I always wonder, when did they do it a first time?

  2. God bless him. There aren’t enough like him.

    1. Dude, he looks pissed in that picture.

      1. He pretty much always looks pissed.

  3. Nuttin but love for da judge. Wish we had more like him in all areas of government. I also love that he has perspective, the A&S act was heinous and I am always amazed that it was passed so shortly after the Constitution was ratified. For you “innocent until proven guilty” pleasure I have discovered this little gem from Ireland

    My Irish eyes are weeping

    1. As soon as state legislators, congresscritters and their staffs are subject to random drug testing with employment termination as a punishment for popping positive I’ll accept that they seriously believe it’s a national crisis.

      Until then I’ll continue to maintain the War on Drugs Liberty is what it is.

      1. it would be nice to read comments to an article that didn’t always morph into a whine about drugs. Stupid potheads.

        1. It would be nice if people would stop assuming that only potheads would care about the war on drugs and that Cheech and Chong are representative of pot smokers.

          1. I agree with comment that not everything should be about drugs, but for people who use drugs, the war on drugs is upfront in our minds as radical racism would be in the minds of an oppressed minority.

  4. Pretty amazing as well to read some of George Washington’s post White House writings and his longing for a strong federal guv.

  5. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn’t have to run as frequently, and the states lost their place at the federal table.


    1. I have long attributed the decline of the Republic to popular election of the Senate.


      Plus, the wimmin-folk get a little slappy if I attribute it to suffrage.

      1. “But once women get the right to vote, we won’t have any more wars!”

        The sad thing is, there are probably women who still believe we’ve become more peaceful, despite 80 years of empirical evidence to the contrary.

        1. “But once women get the right to vote, we won’t any more wars!”

          Ahh, the Sally Field Fallacy. God bless her osteoporotic self. I submit that women are everybit as qualified to lead as men. But to deny that women are less vicious, duplicitous and cunning as men greatly underestimates them. I think there might be less war, but the ones that happen I think would be bloody and decisive.

          Especially at a certain time of the month.


          1. Hey, this chick won’t disagree. Women are just as capable of cruelty, evil and vengeful as any man. Your average high school proves this.

            1. Seconded.

          2. Female politicians’ motivations are exactly the same as male politicians’ (that would be POWAH). So yeah, women suck at politics just as much as men.

        2. It seems unreasonable that once a great number of people got the ability to vote to go to war or not (albeit indirectly) and those same people who would never actually be required to fight in the wars they vote for would result in fewer wars.

        3. Also I should mention that originally most women didn’t earn income, so it’s not surprising that taxes were held down less once women got the vote. Of course now our taxes are so high most women are required to work as well.

          1. It’s funny when you think about it. Oppression of women resulted in them being oppressive to others for numerous reasons.

      2. Historically, your first view is cogent. We are seeing the direct result of this amendment today. Even though, I have a Senator that is for the most part on the side of the Constitution and fiscal responsibility, (the other not so much but has an excellent record of exposing the myths of environmental bogeymen), they should not have been elected by popular vote.

        The “wimmins” is not so much suffrage, but “gender politics”. Same with minorities and “identity politics”. The House of Reps is for that stuff of concern.

        1. It almost seems like the political elite spent 2 decades running identical candidates on every issue except for different boxes checked on the abortion issue and even though the legality status of abortion was never going to change…this was enough to distract women from thinking about anything else as we slowly destroyed everything else in the country.

          1. I don’t want to threadjack with abortion, but you are correct. That particular issue, and a very personal one, should not have been hijacked to the national level IMO. Let states regulate that one as the citizenry sees fit, just don’t make me pay for one.

            But the abortion issue is one of many in the religion of gender politics and many a Senator has struck a political goldmine pimping that particular issue for all it’s worth.

            1. It is thus because the single most important enumerated power of the Constitution is to protect the individual. There are those among us that sincerely believe the fetus achieves the status of individual.
              Rather you think murder should be a right of the individual state?

          2. That’s a good observation.

      3. How could it be due to suffrage? That merely doubled the number of idiots and morons who were casting votes.

        1. If you are bit of a snob(like me) then you might just assume that anyone with a IQ below 110 is pretty dumb.

          Since women have a lower standard dev(more men below 90 and more men above 110…and so the total sub 110 voting crowd more than doubled more like x2.1…and the plus 110 crowd only increased about 1.9…and so the ratio of +110 to -110 got even worse than it already was…so we all lost.

          1. Math is hard!

            1. So’s my…

              Ahh, forget it. Too easy.

          2. Lower VARIANCE is what you mean

            1. The standard deviation is, by definition, the square root of the variance. So a lower variance implies a lower standard deviation.

          3. I don’t know where you’re getting that women have lower IQs than men, but I have heard that women with lower IQs are the best match for men with inferiority complexes.
            At least you’ve got that going for you.

            1. No one claimed that women have lower IQs than men. The mean IQ for women is almost identical to the mean IQ for mean. The standard deviation of IQ, which is a measure of how much variability there is in IQ among a given population, is greater in men than in women. This means that there are more men of high IQ (>110) than women of high IQ. It also means that there are more men of low IQ (

      4. How could it be due to suffrage? That merely doubled the number of idiots and morons who were casting votes.

        See “Gender and Identity Politics”.

        When a government is protecting the rights of say, an individual business owner, who reserves the right to hire or fire at will any employee he wishes and for any reason, some folks are going to be disgruntled. These same groups may feel has wronged them, and in many cases they have a legitimate complaint. It’s when the tipping point has passed beyond rectifying unjust law to retribution, then tracing a fall of a particular society isn’t a stretch.

        Remember, Rome didn’t fall until everyone could vote.

  6. So is this a case where cosmos and paleos can agree to like the same guy?

    I like this guy.

    1. Ah, but his racist homophobic newsletters have not yet come to life yet. And Weigel has not yet had the time to write a smear piece, being caught up with posing with guns as the token right-winger at WaPo.

      1. How dare Weigel smear Paul with facts! Fucking inconvenient truth! Personal responsibility is a cornerstone of a free society, except when someone lends their name to racists for quick cash, in which case it should be totally covered up!

        1. so do you like the judge Penguin?

          Does Napolitonos anti-drug war stance and his opinions on police brutality lead you to blieve he is racist?

          will your opinion change if it comes out the judge has used the n-word?

          1. Gabe: did the judge – for years – put his name on a newsletter that had racist content? No, he didn’t? Well, holy fuck, that’s a big fucking difference, now, isn’t it?

            1. Bravo, BakedPenguin. I like Ron Paul, but to think someone somehow did him a disservice by bringing up the newsletters? BS.

            2. woo…a little touchy…I didn’t say anything about ron paul here, why not direct that at pebbles?…I was trying to be positive and saying it would be fun if we all agreed than Judge was pretty dang good.

        2. Did you ever actually read those comments in context?
          They weren’t politically correct, but it’s hard to call them racist.
          It was definitely a smear campaign – ordinary people can’t be allowed to challenge the duopoly, except in a token manner.

      2. I’m waithing for Matt Welch to write a book about the judge so he can plug it five times a day on H&R.

        1. How much do you pay for this website again?

          Cut the capitalist some slak ok, he married a french woman.

          I bent my wookie

  7. I hate partisans that cloak themselves in Libertarianism when it is convenient.
    “Sixth Amendment? Judge Napolitano calls legal representation a good, not a right”

    1. He’s speaking in the context of “How much justice can you afford?”, implying the better your attorney, the more likely you are to be found not guilty (regardless of the moral validity of the law).

    2. I’m also not sure how many libertarians want to repeal the popular vote of Senators (17th Amendment). We live in a digital/telecom age where the PRESIDENT should be elected by popular vote, not electors on horses riding to DC to proclaim who each state voted for. Saying that state legislatures should pick our Senators is the same as saying citizens are not smart enough to decide for themselves. Not very libertarian.

      1. At least one does. Democracy works best when damped. The 17th makes the Senate too responsive to the public’s often fickle mood swings.

        That’s what the House is for.

        1. The president runs for re-election more often than a senator. Why not stop electing him, as well. We certainly wouldn’t want any politicians listening to what the ELECTORATE thinks. (Unless they think what I think, then it’s okay.)

          The real problem is not that every 2, 4, or 6 years the politicans require a huge influx of cash from inhuman corporations, who are our defacto rulers. Not humans with human needs, ethics, moral codes, social mores, and human responsibilities.

          Every election cycle they SAY whatever the fickle public wants to hear but once they get in office they DO whatever their corporate masters have paid them to do.

          1. inhuman corporations

            SCOTUS recently ruled the corporashuns are people, they can even marry so long as it isn’t gay.

            1. SCOTUS ruled a very long time ago that corporations are persons.

              1. So, can a corporation run for public office?

                1. LOl, just because corporations are REPRESENTATIVES of the people who invest in them, that doesn’t mean that corporations are people. Corporations are stewards of PEOPLE’S money. Therefore they are imbued with a legal responsibility to protect the interests of their investors (and to a lesser extent managers and employees who are members of the corporation, but are secondary). The alternative concept that corporations are secondary to the will of government would mean that all private property rights are an illusion.

                  1. Corporations SHOULD retain all of the rights of private property (which according to international law are above the government), but of course cannot vote, marry, etc. They are not individuals, but striking at a corporation’s right to private property is to strike at the private property rights of investors, managers, and workers, all of whom are individuals. You cannot separate the corporation itself from the people who have a stake in it.

                    People who believe in worker’s rights believe that the government should regulate corporations on behalf of the workers, but it seems that they can’t conceive of a situation in which government regulation might TRAMPLE the rights of the workers. It is my opinion that such people lack imagination as well as cognitive ability.

          2. Agreed. This is why, like Napolitano, I want the 17th Amendment repealed. Senators should represent the STATES, not the people. Then we need to change how Congress is managed, because Congressmen don’t represent the people either, but also represent their paymasters.

            I favor personal representation – I want to select a congressman who will represent MY interests, instead of consistently voting AGAINST my interests. Then let him vote on behalf of myself and his other constituents, the same way shares are voted at a stockholders’ meeting.

            Click on my name above to go to a Facebook page about this.

            1. “Click on my name above to go to a Facebook page about this.”

              Or don’t. I’m finding much about Facebook useful, but they sure make it difficult to link to anything on their site.

              Try searching on Facebook for “I want Personal Representation in Congress”.

        2. Never heard anyone argue that congress is to responsive to the people. Also, I think a pretty solid argument can be constructed that partisan redistricting has essentially made the house into a body thats unresponsive to the public’s mood.

          Better argument is that the states have been sideline, thus preventing them from checking federal encroachment ( though I don’t think there is much to back that up).

          1. Sure they are responsive. The are like the Maxwell’s daemon of jurisdiction. They are responsive as long as it means they can increase their jurisdiction.

          2. “”Never heard anyone argue that congress is to responsive to the people. “”

            Kidding? They are very responsive, else their career ends.

            But of course, Pelosi doesn’t care what people in VA have to say, she doesn’t represent them. People serving in the house only represent their district, and no one else. CA’s senators don’t give a shit about what people in VA think either, they don’t represent VA.

            Too many people think their opinion of someone elses representation has value.

            1. +2

          3. They are responsive to a simple, miseducated majority of their oversized, gerrymandered districts. Which means that, yes, they are mostly unresponsive, except when it comes time to scapegoat somebody to unite the public against an imaginary menace.

            I am trying to promote the idea of Personal Representation, whereby each voter could select their own Rep, and each Rep would cast proxy votes on behalf of their constituents, the same way shares are voted at a shareholders’ meeting.

            I’m trying to start a Facebook group called “I want Personal Representation in Congress”, to get this idea into the mainstream.

        3. Agreed. Repeal the 17th.

      2. I’m not saying people can’t like him. I do like a lot of the stuff he says about the Bill of Rights, for example, such as the 1st amendment and the 2nd amendment and gov’t abridgment of same. I respect that a judge can be forthright and say “I have an agenda…here it is.” It would make our lives a lot simpler if all of them were like that.

        But if you’re going to like Napolitano just like him for what he is, a conservative partisan on FOX News. Don’t allow any pundit/politician (*cough cough* Glenn Beck) to get away with being Libertarian by virtue of simply calling themselves one, which he does in the last para. of page 1 here.

      3. jcalton, a Senate accountable to the States was a major check on the growth of federal government power. You remember, limited government, divided government, all that jazz?

        1. R C Dean
          Yes, if I thought that would be the practical real-world effect if we reverted to that system 150 years later. But I don’t.

          1. You have a point. It could still work, but we’d have to clean house first.

      4. I’m also not sure how many libertarians want to repeal the popular vote of Senators (17th Amendment).

        Easily a majority of those who know they are libertarians would rather see the Senate chosen as before. The more different ways those who make law are chosen, the harder it is to pass laws without widespread support.

        Not very libertarian.

        Your subsequent comments show that you don’t really know what the word means.

      5. “”We live in a digital/telecom age where the PRESIDENT should be elected by popular vote, not electors on horses riding to DC to proclaim who each state voted for.””

        In a democracy, that could happen. But we are not a democracy. We are a republic. Perhaps you might be familar with the phrase, “and to the republic for which it stands”

        “” Saying that state legislatures should pick our Senators is the same as saying citizens are not smart enough to decide for themselves. Not very libertarian.””

        Is wanting to keep the idea of government that our founding fathers created unlibertarian? If the Senators actually represented the people, I could see your point. But it was not intended that they do.

        If you think about it, the founding father limited the big political circus to one house of Congress.

        Half the country gave Bush jr. a second term, the other half elected Obama, generally speaking. They have a negative view of both houses of Congress but both parties elected a Senator for the presidental general election, ultimately giving a Sentor a promotion. They consistantly elect tough on crime candidates, yet bitch when they are tough on crime.

        When it comes to keeping government in check, the citizenry has become very lousy, if they were ever any good.

        1. I did pretty good.

          1. I did better

            1. Who are you kidding? You acted 4 years too late!

              On the other hand, the Johnson that succeeded your president was not as bad as the Johnson that succeeded Oswald’s president.

      6. I’d venture I do. The reason being that we, the public, already do have a voice in the Federal Government, which is the House. We also control the state governments (or we SHOULD anyway) who would choose their senators for the Senate. But basically, taking the state’s voice away in Washington took their teeth out, and this is why we have the Fed running roughshod over the states.

      7. The brakes should be able to override the accelerator.

        1. That’s not what happens in some Toyotas.

          1. I didn’t know Jay Leno reads Reason!

    3. Legal representation cannot be a right, because it is something someone has to provide for you. To have it you must take something from someone else. That’s can’t be a right.

      Hence the Bill of Rights have nothing in them that must be provided for you. It’s all what may not be done to you by the government.

      IE the government doesn’t have a right to regulate your speech. But that doesn’t mean you have a right to say whatever you like on my property for example.

      1. I think there is something in there about representation being provided in criminal cases.

    4. There are many other forms of legal representation other than criminal defense. The Sixth Amendment only pertains to criminal prosecutions. In all other cases, it is a legal right, not a Natural right.

  8. Has ANYONE else been able to bridge this gap so well? Does Napolitano sufficiently clear accusations of racism of anti-immigration from the cosmos?

    Seriously…lets be constructive…I am actually happy that there may be a person that pleases both crowds. We know he is good on TV and can do well in a debate format. How about a ticket of Napolitano Pres- Ron Paul VP? they are friends.

    1. How about Gary Johnson / Napolitano? Yes, Johnson was an (R), but he’s against the drug war, did not run massive deficits, support wars for the hell of it, etc.

      1. well…sounds much better than Barr and I voted for that dinghole.

        I have heard Napolitano speak a lot more than Johnson and a lot more recently. I have only read the occasional article on Gary Johnson(which sounded pretty good) but that was awhile ago so I am not sure.

        1. I actually voted for Paul – warts and all – and then Barr. It was the first time I can remember voting for a Libertarian where I thought he was merely the lesser of three evils.

          And I could not believe they chose Root as VP. Kubby is a guy who credits medical marijuana with saving his life, and nearly became a martyr because of it. Jesse Walker described the nomination of Root over Kubby as “tone-deaf” – and it sure as hell was. What a story it could have been – a former drug warrior, now partnered with a man who needs medical marijuana to live. Christ, the lede writes itself.

          Instead, they went with so-so libertarian Barr, and blow hard Root. I voted for Badnarik with more enthusiasm than those two.

          1. BP-

            I admire and respect Kubby and have met him at LP conventions. Sure, like you, knowing what I do about Kubby and Root, I would have preferred Kubby.

            However, too many here just pissed all over Root. I remember some folks were upset with Root’s contentions that Obama was not much of a presence at Columbia, and if noticed at all, it was in connection with a black students group.

            I made the point that at least Root was not an affirmative action admittee. He called for Obama to disclose whether he was an affirmative action admittee. At least Root had the integrity to step forward and publicly declare that he was not an affirmative action admittee.

            Moreover, I pointed out how much more Root had done with his life than Obamna. Root has not spent the vast majority of his life in the public sector and he had not spent his life in the private sector rent seeking as Obama did.

            Plus, Root is not a racist like Obama.

          2. WOW, I just don’t get the Root dislike. If you look at his appearances, read his writing, and see what he has ACTUALLY done for the LP then from an objective standpoint how can you NOT like him (this is assuming that LP politics is important to you, i understand if it is not then dont bother with a Root discussion but if it is then address please)?

            He is not perfect, sounds like a used car salesmanm, and says Son of a butcher WAY TOO MUCH but beyond that he has put a ton of effort into getting the name and the principles of liberty out to the general public. Please, someone point me to something decisivly non libertarian that he has said in the last two years. I welcome the knowledge, but as far as I have seen i can’t find anything.

            it’s pronounced I-Gore

  9. So is this a case where cosmos and paleos can agree to like the same guy?

    I’m not a paleo, but I’m more not a cosmo, and what most makes me not one is cosmos’ always citing establishment figures for validation.

    “Look, a judge (or someone in the Atlantic or Salon, or a famous dork, or any Democrat) said he’s a libertarian! I’m that kind, not the teabaggy kind.”

    It’s desperate shit.

    1. Cosmos have sand in their pussies because Palin said they are fake Americans from the phony un-American non-America where everyone roots for Al Qaeda rather than the crappy sports teams of their elitist schools.
      I thought they’d settle down once Obama restored their precious stem-cell funding.

    2. Does anyone self-identify as “paleo” or “cosmo”? Or are they just epithets for people we don’t completely agree with. I’m not even sure what either of those terms is supposed to mean.

      1. I dont know what those terms mean in this context either.

  10. Saying that state legislatures should pick our Senators is the same as saying citizens are not smart enough to decide for themselves. Not very libertarian.

    The history has shown overall that no, we as a citizenry of individual states are not capable of voting for senators that uphold constitutional principles in lieu of self-interest, i.e. government subsidies, more federal welfare money, and federal protectionism. Once a society has figured out it can vote itself money, the society s doomed for failure. The 17th amendment provided the accelerant for that doom.

    1. By and large, our state legislatures have failed us as badly and infringed our constitutional rights as much as the federal government. Most of them are all just waiting for their chance to make the big leap to DC and a federal seat.
      I see no reason to assume they would do a better job of it than me.
      Maybe you guys just live in states where you trust your legislature more than your electorate. If that’s the case, go for it.
      Hat-tip to you, I really mean that. I guess I’m not ready to pick up and move to Vermont or Wyoming or wherever.

      1. By and large, our state legislatures have failed us as badly and infringed our constitutional rights as much as the federal government.

        That is the fault of the citizens of that particular state. I would submit that the level of corruption of the Federal Government is dwarfed (or gnomed:-) by the level of corruption at the state and local level.

      2. You make a very good point here. I live in Pennsylvania, and if you knew about our state legislators and the corruption/incompetence that happens year after year, you would not want these people sending reps to washington for you. Hell, I wish I could figure out who keeps voting for these freaks.

        1. Also, we should consider all the quasi-legal shenanigans that happen when a rep needs to be chosen when there is an unexpected vacancy in congress

          1. You mean like Ted Kennedy’s vacated seat (though that was in MA)? Or even Obama’s in IL?

        2. I live in Pennsylvania, and if you knew about our state legislators and the corruption/incompetence that happens year after year, you would not want these people sending reps to washington for you.

          How much worse could it be than Specter and Casey? Seriously, arguing that the States would send a lower class of legislator than the peepul have is a non-starter.

      3. The idea isn’t that the senators sent by the states will be so wonderful- the idea is that power is further divided. All the corrupt politicians are squabbling amongst themselves, so they don’t get anything done, leaving the rest of us to live our lives in relative freedom. I’m sure it wouldn’t be perfect, but I think it would be better than the mess we have now.

      4. We need to have a more serious, proactive population for any of this to work. But honestly, given the sheer interest in politics right now post Obamacare passage, that might not be so impossible anymore.

        1. I think the idea is States send their Senators and they can recall them. Then at the State level you would “have a more serious, proactive population” The Senator is there for the States business.

  11. Interesting points on the 7th I had never thought about that.

    Also great point on making the government prove something is consitutional first.

  12. Judge may be more effective as attorney general. He could really shake things up. When Mitch Daniels is elected president (he as much as admitted he’s running last week) he couldn’t do better than tapping the judge for AG. Or, better yet, the judge would make an excellent life insurance policy as VP. No lefty would knock off Daniels with Napolitano waiting in the wings.

    1. I’d put him on the Supreme Court.

      1. Even better yet.

      2. Damn you! Beat me to it. However, the actual amount of judicial experience that he has may come into question.

    2. mitch daniels? might as well get Paul Wolfowitz to run…what a dick.

  13. I’m a big fan of the Judge, but Napolitano is a pro-lifer / anti-abortion, however you want to say it. I think that makes him a non-starter for POTUSA, VP or Supreme Court. Just don’t see how it could work. Also, he’s said some things, like FDR purposely allowed the Pearl Harbor attack to get America into the war etc. that could easily be used to paint him as a wacko. AG is a possibility, maybe.

  14. He describes himself as a “pro-life libertarian” (says his Wikipedia entry). I wasn’t aware there was such a thing, but has anybody asked him how long a prison term he wants for a woman who has an abortion? And how does he know that’ll work?

    The wire coat-hanger business sounds like a good investment…

    1. He describes himself as a “pro-life libertarian” (says his Wikipedia entry). I wasn’t aware there was such a thing,

      Stick around. You’ll find that libertarians are split on this.

      There’s also a valid more or less agnostic position that many Constitutionalist-libertarians hold, that the Constitution has nothing to say about abortion, and so it is a matter for the states.

  15. Also, he’s said some things, like FDR purposely allowed the Pearl Harbor attack to get America into the war etc. that could easily be used to paint him as a wacko.

    This is widely acknowledged by historical scholars.

    1. That is one of the reasons I like him so much. I knew you guys would figure it out…go listen to his interviews with Alex Jones…the cosmo crowd here would hate this guy.

    2. Not sure how “widely acknowledged” it is. I’m thinking there would be a real fight if that idea was included in a high school history text. My comment was really meant to show that Napolitano holds some views far enough out of the mainstream that it would be hard to get him elected. I’m not convinced the idea that FDR purposely allowed a huge chunk of the Pacific fleet to end up on the bottom of the harbor is considered mainstream, regardless of its historical merit.

      1. FDR didn’t know that the attack would happen the way it did, but most scholars acknowledge that he knew some sort of attack would occur early in December and that he had spent months trying to provoke it. Witnesses described him as shocked at the extent of the damage, but relieved that he could finally set about his “New Deal for the world” crusade.

        As for high school textbooks, they are pretty damn useless.

        1. It was up to the Japanese to attack or NOT attack. Personal responsibility, apparently, died a lot longer ago than we thought.

  16. Kevin,

    Thank you for alerting me to his prolife views. He did an interview with Reason in 2005 and said: ‘On many issues, I agree with conservative thought. . . . I believe abortion is murder.’

    And if that wasn’t clear enough, he adds:

    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?
    Napolitano: Yes.
    Reason: First-degree murder?
    Napolitano: Yes.
    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.

    1. I see the abortion issue as really having no morally superior solution. It’s a terrible dilemma due to human biology. The least offensive thing to do seems to be to allow each woman to make her own choice.

      1. Forgot to say that positions both for and against abortion/choice are consistent with Libertarian ideals. In the end, choice is kind of like alcohol prohibition. Would we be better off if we all chose not to drink alcohol? Probably, but since we can’t have that, given the contrariness of human nature, the next best option is to allow it.

  17. for the record…I’m not in favor of those laws that old judge is in favor of.

  18. Judge Napolitano is a real treasure, and has done much to make the case for individual freedom and limited government.

    I am afraid that repealing the 17th Amendment would have the opposite effect from what he hopes for.

    When the state legislatures elected Senators, Senate candidates who had money would fund campaigns of friendly candidates for the legislature. Today that would mean special interest money would go into state legislative races to an even greater degree. The special interests that profit from federal spending would become dominant factors in electing state legislators, and coopt them even more into the system of federal supremacy.

    In the UK, where the Prime Minister is “responsible” to Parliament, it has brought the members of Parliament under total control of the party whips. Here a Republican can vote agains the party position, but in the UK, if your vote can bring down a Prime Minister of your own party, you dare not deviate from the party line.

  19. Can anyone provide a reference for the statement he made about rationing not being necessary in WWII?

    1. Pretty much any free market economics primer would make that case. Production is not a zero-sum game — if people want more sugar, then more sugar can be grown, if the government doesn’t interfere with voluntary exchanges between individuals.

  20. Chief Justice John Roberts, when he was Judge Roberts, was asked at his confirmation hearing, does the Constitution prohibit the execution of the innocent by the state? He paused and said yes. Who could possibly pause?

    Actually, I could see the pause, since a possible follow-up question could be, “Please cite the specific passage prohibiting this.”

    Frankly, I can’t recall such a passage, much as I would like it to be in there in the Bill of Rights.

    1. The Fifth Amendment to the Constitution provides that no person shall be deprived of life, liberty or property without due process of law.

      Of course, an innocent person can be found guilty, even with no malfeasance on the part of the court, so strictly speaking, the constitution cannot alway protect an innocent person. But if a person can prove their innocence in court or through the appeal process, then they are protected from punishment.

  21. are we protected from being pantsed?

    1. Obama’s next SCOTUS will be asked this question by Barney Frank.

  22. I was generally good with Napolitano until he explicitly paralled a belief in Jesus to being anti-Obamacare on Faux News. Of the 40 billion reasons to not like Obamacare, believing in Jesus is reason number… Uhhh… Yeah

    1. Can’t help but agree with the cosmos here. I don’t have a big problem with religion, but the monotheist are a bit cultish.

  23. …explicitly paralled a belief in Jesus

    What does “paralled” mean – is it even a word? Did you mean to say paralleled? Or perhaps parlayed? The latter would fit better. Just asking.

  24. “But once women get the right to vote, we won’t have any more wars!”

    I agree with BakedPenguin:
    The sad thing is, there are probably women who still believe we’ve become more peaceful, despite 80 years of empirical evidence to the contrary.

  25. I believe the link is broken to Reason’s featured video of Andrew Napolitano’s keynote address at “Reason in D.C.” in October 2007. Will you advise me when it is corrected, please?

  26. “It has been said that democracy is the worst form of government except all the others that have been tried.”
    Winston Churchill

    I am tired of these guys complaining all the time about “mean gvt”:
    – We all know gvt has its flaws for the simple reason it is the work of men, with their flaws.
    – Gvt isn’t a monolithic entity. Saying “it” is lying is childish.

    This guy isn’t a hero. He’s just a rodeo clown making a comfortable living blathering on TV.

  27. I’m a big fan of the Napolitano. It’s interesting though, the folks that set up a website in his name (an in his honor) have turned it into the Tea Party website.


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