Election 2016

Chris Christie Versus Rand Paul

Among the current presidential candidates, only Paul has advocated for fidelity to the Constitution.

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Screenshot/Fox News

The dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution—particularly the Fourth Amendment—was the most illuminating two minutes of the Republican debate last week.

It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.

What did the king do? He dispatched British agents and soldiers into the colonists' homes and businesses ostensibly looking for proof of payment of the king's taxes and armed with general warrants issued by a secret court in London. A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant—the standard was "governmental need"—and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.

The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone—privacy—by preventing general warrants.

The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.

But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act, and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead—incredibly—the old British governmental need standard. Hence, under any of the above federal laws, none of which is constitutional, the National Security Agency (NSA) can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, and legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them. And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.

These federal acts not only violate the Fourth Amendment; they not only bring back a system the Founders and the Framers hated, rejected, and fought a war to be rid of; they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.

Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because that's what the Constitution requires. The remaining presidential candidates—the Republicans and Hillary Clinton—prefer the unconstitutional governmental need standard, as does President Obama.

But Christie advocated an approach more radical than the president's when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyone's phone calls and read everyone's emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.

Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.

Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.

COPYRIGHT 2015 ANDREW P. NAPOLITANO || DISTRIBUTED BY CREATORS.COM

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  1. Fuck Chris Christie on so many levels. Mainly because of his backwards views on weed but the 4th Amendment shit too. Dudes a douche.

    1. You forgot obese. Who will be “one heartbeat away from the Presidency” when the fat fuck croaks from one too many double cheeseburgers?

      1. Lindsay Graham? Ugh the horror…

    2. I agree, we do not need this fatso micromanaging our lives. Hell with Jeb and Hillary too, they all think the government crooks should be able to do what they want and get away with it.

  2. Napolitano nails it again. This a shouldn’t be a matter of debate by public officials. The power simply doesn’t exist for public servants to exercise so or decide different than the Document which affords them any power at all; criminal and immoral to attempt otherwise, albeit that’s what politicians do.

    1. Our government people are criminals indeed!

  3. A coworker of mine stated that, of all the candidates in that debate, she most liked Christie. She is an avowed liberal and hadn’t watched the debate. I don’t know where she got whatever informed her decision, but I’m guessing it was video of the mindless “I hugged 9/11 victims” response to the questioning of his understanding of constitutional protections. Federal prosecutors have political ambitions, and Christie’s ignorance of the 4th Amendment during his stint no doubt did him well personally. And if Rand Paul wasn’t in the race, he wouldn’t need to be defending himself on the issue at all right now. No one else questions it.

    1. Since she didn’t watch, I doubt she heard his hugging comment. (By the way, isn’t being hugged by a 400-lb sweaty guy more of a punishment than a source of comfort?) My guess is she had heard about his prior embrace of Obama.

      The thing about avowed liberals and the fourth amendment is that it depends on whose doing the violating. When people like Nixon and W. do it — it’s awful and they must uphold our precious constitutional protections against the tyrants. When a Democrat does it, it’s a perfectly fine tactic by a divine leader that’s vital for keeping everyone safe.

      I think she may have simply mistaken Christie for one of her own.

      1. Liberals do the same thing when it comes to providing protections to defendants. They cheered when the Warren Court (rightly) protected people against the excesses of government abuse yet are now willing to throw all those protections away in the case of rape.

    2. I admire Rand for his stance on the NSA and spying, it takes guts to take such a stand, considering how much both parties support it.

      However realistically, the Republican base doesn’t like what he says, so he won’t have much of a chance to win the nomination. It’s too bad, because a lot of young voters and fiscally moderate to conservative independents or center-left people kind of like him.

      Yeah Christie is a blowhard. I never liked the guy.

      1. I think that the Republican base is sort of fractured on this issue. Yes, the neocons that elected Bush don’t like what Rand says, but a lot of the “tea party” folks actually fall more in line with Rand than Christie. Not to say, of course, that they’ll vote for Rand which I think we all know isn’t going to happen.

        1. Primary voters I believe are usually better informed than general voters, but that’s a low bar. And primary voters still get their information from selected (by them) media sources, and if their preferred talk radio host isn’t of the small government, personal liberty persuasion (and let’s face it, likely he isn’t) then they’re only concern at the moment is immigration.

    3. Christie isn’t ignorant of the 4th amendment. He choses to ignore it like most of the corrupt politicians.

  4. My wife thought I was nuts when I started shouting at the TV last week when Christie (from here on out referred to as Prime Douche Wad) stated his views on this.

    Then I explained what he said (she wasn’t paying much attention). She just about turned white, she already doesn’t trust the govt. Good lady!

  5. I for one don’t understand how this is not one of the biggest issues in the campaign. Not only is it obvious from most superficial reading of the 4th amendment, the NSA spying has already been decided to be unconstitutional in a court of law. Yet it still continues. And the perpetrators are not held accountable in any way. Nixon went down for a simple wiretap and coverup, yet BO is having it done to every American. When will impeachment proceedings be initiated? Anyone? Beuhler?

    1. Because we’ve long ago sold the Constitution down the river in exchange for a nanny state and a false sense of security. Until the populace at large demands a return to the Constitution and the Bill of Rights, they may as well be last week’s newspapers.

    2. My experience is that most Americans don’t really care about the Constitution. Their stance on whether the government should be able to do something comes down to whether it affects them personally. It doesn’t matter to them whether it’s lawful or whether it might adversely impact others. The only time they run to the Constitution is for expediency – not as a principled position.

      1. Their stance on whether the government should be able to do something comes down to whether it affects them personally.

        That, or THE FEELZ.

      2. I think that has to do with an misunderstanding of what the constitution is and why it’s there. Our edumakshun sistim doesn’t teach that, not surprising since most who are supposed to teach either don’t know it themselves or don’t like it. It is to put restraints on the gov’t concerning it’s powers over us. I would think that most people think it has to do with what powers the gov’t give to us and the states.

        “Governments are instituted among men, deriving their just powers from the consent of the governed.” –Thomas Jefferson: Declaration of Independence, 1776. ME 1:29, Papers 1:429

        Funny how this is not taught, not known by the people and how gov’t has twisted it to mean that states and individuals derive their powers from the gov’t. It’s getting to the point that to mean what Jefferson wrote and if we proclaim, we are very close to being “treasonous” according to those like Christie.

    3. Nixon went down for a simple wiretap and coverup, yet BO is having it done to every American.

      The difference is Nixon did it to his political opponents (IOW our “betters”) for political gain while the current pres does it to all of us proles allegedly to protect us from TEH TER’RISTS. The political establishment hates it when they’re spied on, they could give a shit about the rest of us.

  6. Christie was a scumbag prosecutor. Why would he want that pesky Bill of Rights to get in his (or his ilk’s) way? I don’t want to Godwin the thread, but…

  7. “The remaining presidential candidates?the Republicans and Hillary Clinton?prefer the unconstitutional governmental need…”

    Um, wrong again, Judge. You seem to forget about Bernie Sanders, who has an even longer track record for standing up for the Constitution when it comes to government overeach on national security. You see, he voted against the Patriot Act in 2001, when the Senate was barely a twinkle in Rand Paul’s eye. And when it comes to NSA, he and Paul have both raised the same alarm.

    Of course, you would have had to give full dibs to an avowed socialist on this matter, so you chose to hide that fact. Try again.

    http://m.mic.com/articles/1177…..rveillance

    1. Actually throughout these threads usually most of the commentariat gives Bernie kudos for that. He is a fucking idiot on everything else, but this is one issue that most of us do acknowledge him for.

      1. Maybe true, but I took the Judge to task for his blatant oversight. He knows better.

    2. Try harder next time, Troll.

      1. Nah. I love and respect Napolitano, but this did jump out at me. If we write passes for people because we love them, what we love about them erodes in time. I forgive him, but this was definitely a thing that happened.

    3. I found it ironic that Paul would cry out that Trump is close to the liberals on some issues when it is a fact that libertarians, which I proudly claim to be one of, are close to some issues that liberals also defend. There’s a reason some in the libertarian “camp” refer to libertarianism as “classical liberalism.”

      1. Modern liberalism is just another form of socialism if not down right communism.

    4. It seemed to me that the Judge purposefully excluded Sanders from the list of candidates who hate the 4th Amendment, or he would have just said “The remaining presidential candidates?the Republicans and Democrats”.

      1. Yes, Woodrow! He did not consider any of the other candidates in the Hillary show! He said “the other (Republican) candidates and Hillary”, which would be what any sensible person would understand with Bernie’s, absolutely insane socialist views! He is not a legitimate candidate, no more than Lindsey or Chris! And Hillary will be crowned candidate queen until the day she is convicted of wrong doing! Just sayin’!

  8. I just don’t understand why the American people are not up in arms, literally: Matching on DC with guns and wood chippers, building gibbets along Pennsylvania Ave.
    Keep up the good work, Judge, and if you want to throw one or two rhetorical questions into an essay, we won’t be too hard on you.

    1. I just don’t understand why the American people are not up in arms, literally: Matching on DC with guns and wood chippers, building gibbets along Pennsylvania Ave.

      It has something to do with frogs and pots of boiling water.

  9. This couldn’t be more on point. I really, really wish Rand was a master debater.

  10. This is the same Rand Paul who’s website reads, ‘As President, I would strongly support legislation restricting federal courts from hearing cases like Roe v. Wade, in an effort to stop harming the lives of the unborn…I will attempt to stop the flow of taxpayer dollars to groups who perform or advocate for abortion.’ So he’s for the 4th amendment AND using executive and legislative authorities to interfere with the judicial branch as well as defunding Planned Parenthood. Can we stop pretending he’s a libertarian now? He’s not any better than any former candidate who’s been in this same position: least bad.

    1. Keep searching for Mr. Perfect. One day, your prince will come.

    2. Well, some believe that ending a life at its most innocent vulnerable state of existence (in the mother’s womb) is un-libertarian. On the other hand, the government is nearly worthless at effectively prohibiting anything, so it is a conundrum.

    3. His official stance on abortion is to cite the tenth amendment. The language is a personal belief of his, but also intentionally phrased to appeal to more traditional conservatives. Show me where he proposed drafting national legislation to restrict abortion, not just removing involuntary tax payer subsidies.

  11. “Christie rejects the plain meaning of the Constitution…”

    Of course he does, he’s a fascist. Funny that he demands strict adherence to federal law concerning pot, but constitutional restrictions on his actions are just a speed bump. Just look at what he did at “bridgegate” to see what happens to anyone, or group, who would disagree with him. Obama is one side of the coin, he’s the other side.

  12. So, two options: the constitution either allows for the government to do this shit, or the constitution has done nothing to prevent the government from doing this shit. Hence why in the long run the 2nd amendment is the only one that matters.

    1. Problem is, the 2nd amendment has lost enough strength as to be deemed insignificant at this point. How long do you think an armed uprising would be able to go up against the government these days?

      1. Depends on who the military support. I don’t see too many officers willing to order their men to die on American civilians, and few enlisted who would obey such orders. Soldiers are actually educated about the Constitution, lawful orders, and the Nuremberg trials.

      2. If the military supports us, we can go al the way. Remember Russia.

    2. Lysander?

      “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

      Lysander Spooner, No Treason: The Constitution of No Authority – 1867

  13. Rand needs to read portions of this article aloud during his next campaign speech. And provide the Judge due credit, of course.

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  15. In any case, it seems pretty clear that Rand is half-assing it now, since there is little chance of changing the situation in Kentucky that would prevent him from running simultaneously for his Senate seat. The GOP is taking a vote on Aug 22 and unless Paul comes up with the money to pay for the change to a caucus, his presidential bid is toast.

  16. If Rand had any sort of personality or charisma, he would be a sure fire GOP front runner.

    He’s libertarian where it counts – defense, second amendment, free speech, privacy, etc. Even libertarians agree that government has a legitimate role in regulating borders, so only the purest of open borders advocates will see him as a sellout.

    Notice that he strikes the right balance on sensitive issue. He’s “anti-war” in that he wants out of most conflicts abroad, but he won’t insult our troops or indulge in rhetoric. When the American Sniper died Ron Paul and Sheldon Richman essentially called him a monster. Rand called him a hero. This is a lost art among libertarian candidates.

  17. cops just ask the judge and he grants em a warrant to seize any thing that hurts governments feelings or interferes with the profits of big pharma..

  18. What about Cruz? What is he? Chopped liver? To say Paul is the only one who wants the government to adhere to the Constitution is absurd.

    1. Has Cruz been quoted on it?! He does not meet my low requirements, as yet!

  19. Christies dust up with Paul during the debate was all I needed to see to convince me he is unfit to hold public office. Anyone supporting the government spying on all it’s citizens should be exiled to Cuba or Russia.

    Pau is a patriot.

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