Judge Andrew Napolitano on Election 2016 and Being a Pro-Life Libertarian
The Fox News legal analyst fears electing Trump OR Clinton would be the "demise of the Constitution as we understand it."
"Do you know anybody living who expressly consents to the existence of the government and consents to what it does?" asks Judge Andrew Napolitano, senior judicial analyst for Fox News, syndicated columnist, and author of, most recently, Suicide Pact: The Radical Expansion of Presidential Powers and the Assault on Civil Liberties. "Your rights, my rights, are integral to our humanity. The government can't take them away by majority vote!"
Reason's Nick Gillespie caught up with the judge at this year's FreedomFest, the annual gathering of libertarians in Las Vegas, to discuss how his traditional Catholicism intersects with his libertarian politics, why electing Trump or Clinton will likely lead to the "demise of the Constitution as we understand it," why he thinks Libertarian Party presidential candidate Gary Johnson won't win in November, his commitment to open borders, and the philosophical underpinnings to his pro-life stance on abortion.
"My opposition to abortion is not only because of Church teaching, but also because of a rational examination of the baby growing in the womb and a belief in the non-aggression principle," Napolitano explains. "The non-aggression principle prevents you from interfering with the life or the property of another human being without moral justification. There is no moral justification for killing a child in the womb!"
Runs about 30 minutes.
Edited by Ian Keyser and Joshua Swain. Cameras by Austin Bragg and Jim Epstein.
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This is a rush transcript. Check any quotations against the actual recording.
NICK GILLESPIE: I'm Nick Gillespie with Reason TV. Today, we're talking with Judge Andrew Napolitano. He is with Fox News. He's the senior judicial analyst and the author of many books, and a great friend to freedom and to Reason. Thanks for talking with us.
NAPOLITANO: Pleasure being with you, Nick. Thank you
GILLESPIE: 2016 election. Stuff's getting real. What do you see as the major stakes in this game? There's Hillary Clinton and Donald Trump as the major party candidates. Are either of them acceptable as President of the United States?
NAPOLITANO: A complex question for me working at Fox News, being aware of Mrs. Clinton's criminal behavior, having a personal financial relationship with Donald Trump. I might add the Donald Trump I know personally does not resemble the Donald Trump that you see on the campaign trail.
GILLESPIE: And what is your—what is your personal—
NAPOLITANO: I own a piece of real estate with others that he manages.
GILLESPIE: Oh, OK.
NAPOLITANO: And the people that own this with me love him because the value of it keeps going up, and he is worth what we pay his management company to, to improve it.
GILLESPIE: So let's stipulate he's a fine business man or property manager but—
NAPOLITANO: At least in this particular case, he is.
GILLESPIE: But should he be president?
NAPOLITANO: Well, the issue, as I see, it is the likely demise of constitutional government as we understand it, as we have come to understand it. It is—
GILLESPIE: And this is whether it's Clinton or Trump?
NAPOLITANO: Correct!
GILLESPIE: Yeah.
NAPOLITANO: Correct, Nick, because they each believe in their own version of big government. Neither of them recognizes the natural law of restrains on government. Neither of them recognizes the constitutional restraints on government. They each believe they can use the powers of government to build their version of big government, whether it's sort of an economic egalitarianism that Donald Trump preaches, or whether it's a Bernie Sanders, redistribution of wealth which Hillary now embraces.
GILLESPIE: So, how does this happen? I mean, because these—they didn't come out of nowhere. I mean, they are the Republican and Democratic nominees. What's going on with the parties in America? Because it's not just the individuals that—
NAPOLITANO: The Democratic Party has continued its march hard to the left, which, you know in my view, has been on the left for a long time going back to FDR and LBJ accelerated it, and then George McGovern almost took it over the cliff, and that tends to move the center a little to the left, which gives Republicans cover for their own version of big government. I mean, stated candidly, I have as much objection to Paul Ryan as I do to Nancy Pelosi because Ryan just keeps churning out legislation that the White House wants because there's a little snippet in there that pleases country club Republicans. But there's nothing in there that pleases Jeffersonians, people who are worried how the federal government can do all these things that are not justified by the Constitution, and why the constitutional argument seems to be made on Fox News, at Reason magazine, at FreedomFest, and in academic circles, but rarely—rarely—on the floor of the Congress.
GILLESPIE: Is there any way that that is going to be reeled backed, because I can remember a period—I guess in the '90s—when the Lopez decision that reeled back some of, uhh…upended the federal Gun-Free School Zones Act.
NAPOLITANO: Yes.
GILLESPIE: And I can remember people like Glenn Reynolds, the…you know, who runs Instapundit—
NAPOLITANO: Yes.
GILLESPIE: A law professor at University of Tennessee, said this is the beginning of the Rehnquist court. They were actually reeling in the Commerce Clause.
NAPOLITANO: Well, I agreed with Professor Reynolds when he said that. It hasn't turned out as well as he and I and those of us on this side of things would've liked it. But this Lopez decision, which invalidated the Gun Free Zones—because it was written on the basis of the Commerce Clause—and the Supreme Court said carrying a gun outside a school is not a commercial activity it's a criminal activity.
GILLESPIE: But it—
NAPOLITANO: First time since the…the New Deal that the Supreme Court has rolled back something that the Congress did on the basis of the Commerce Clause.
GILLESPIE: So, is that a sign then that the Supreme Court, you know—and this is something that people talk about when they say, "Oh, well, you know what? Hillary is awful. At least Trump would give us—would give 'us'—Republican or conservative judges." But the court really isn't that powerful then…right? And, I mean, we need people who believe in limited government and constitutional government to force—
NAPOLITANO: We need those people to be, to be on the court because—unless the Congress is filled with people like Ron and Rand Paul—it will continue to give away the people's money, and it will continue to trample the restraints imposed upon it by Constitution, whether it's a Democrat version of big government, or a Republican version of big government.
GILLESPIE: Here is one of the things that really, I think, splits you with a lot of your colleagues at Fox, but also libertarians from conservatives. Talk about how you take libertarian principles into things like foreign policy and immigration in a way that often conservatives tend to be against immigration and they tend to be for foreign intervention. What's the argument there?
NAPOLITANO: The reason I'm smiling is because I, I never get as much heat from any—from Fox fans and Fox viewers about anything as I do about immigration. So to true libertarians—and this is not even all libertarians, you know—
GILLESPIE: Right.
NAPOLITANO: But to true Thomas Aquinas, natural law loving libertarians that are "Rights come from humanity," you have the right to travel wherever you want, which includes across a border. So I am unabashedly, unapologetically an open borders person. If I want my cousins from Florence to come and live in my home or I want to rent an apartment from them to stay here, quite frankly it's none of the federal government's business. Now, that doesn't mean they should qualify for the type of largess that the government gives away, but the government doesn't have the right to stop them because of their nationality or their place of origin.
GILLESPIE: That doesn't work for very well with conservatives.
NAPOLITANO: No, no, no. It doesn't work well with conservatives.
GILLESPIE: And is there—
NAPOLITANO: Nor does—to get back to the first part of your question—the libertarian view of foreign policy, which is the nonaggression principle, which is that, that aggression, that powers of war can only be used for defensive purposes or when it is, it is certain that they will be needed for defensive purposes. But the idea of dislodging a tyrant or the idea of changing borders, national borders in the Middle East by using the American military is antithetical to basic nonaggression principles.
GILLESPIE: So, how do you feel about Gary Johnson in this election, and more, you know—what we're seeing is a third term entering American politics. You know, we've got a conservative Republican kind of, a liberal Democrat kind of, and we have a libertarian Libertarian. Is this a good time for—
NAPOLITANO: OK, I'm not so sure Donald Trump is a conservative Republican. I—as well as I know him, and as much as I like him personally—I do not know where he stands on a lot of these issues. I was extremely dismayed—I've said this already in public—that he went on abortion from the mother should be punished to maybe we should be a pro-choice party. I mean, that's 180 degrees. And, and from my position at Fox, we are not supposed to say who were are voting for this person.
GILLESPIE: Right, sure.
NAPOLITANO: But it is clear that my views—and it is clear that libertarian views—are far more consistent with Gary Johnson's. I don't think there's a libertarian bone in Mrs. Clinton's body, and I don't know of one in Donald Trump's body. There is bizarrely this organization called Libertarians for Trump. Now, one of the founders of it is a dear, dear friend of mine, Professor Walter Block at Loyola University in New Orleans. He is so libertarian that I often say to groups I am—wherever I go—the most libertarian person in the room except when Walter Block is there. Now I can that without the exception because he's…he thinks that Trump will save us!
GILLESPIE: What is case for Trump then?
NAPOLITANO: The lesser of two evils.
GILLESPIE: Oh, OK. So, do you think that libertarian ideas are ascending right now in America? I mean, Johnson and Weld are doing well in the polls, that the phrase seems to be catching on, people are looking for an alternative—
NAPOLITANO: They are definitely.
GILLESPIE: Is that alternative libertarian?
NAPOLITANO: The answer is yes they are ascendant, and yes that is the alternative, and it will draw young people from all across the board. It will draw Bernie Sanders people who will not get their redistribution but will get their freedom from unwarranted restraints and the right to do your body in your own home what you want, that freedom from surveillance, freedom from foreign wars. All of that which they got from Bernie and they'll never get from Hillary or Donald.
Listen, I don't think Gary Johnson is going to be elected president, but I think he's going to get a lot more votes than anybody including he has ever thought he would, and that may be the beginning of a very comfortable place for a…an amorphous group of people whose principle purpose is to get the government off my back.
GILLESPIE: Right.
NAPOLITANO: You know, one of the most liberal Supreme Court justices in the modern era, William O. Douglas, said, "The Constitution was written to keep the government off the people's backs." That will unify millions of people. Could Ron Paul have done a better job? Ron Paul had a great charisma. Time is obviously not on his side. And Gary Johnson just has to put his finger on a half dozen buttons—not all of the—all of which are connected to personal liberty in a free society.
GILLESPIE: You were talking about Hillary Clinton before, and you were outspoken in the run-up to the FBI director James Comey releasing his recommendation not to prosecute her. Talk about it, and it's, it's not simply, you know—you're not "You hate Hillary Clinton as a person," but what is it about that situation of her using a person email server, and then dissembling about its use and its reach and all of that. And then on top of it—like, that's her problem. She's a bad actor and all of that.
NAPOLITANO: Right.
GILLESPIE: But what is the problem with the FBI director coming out and saying, "Hey, you did all of this stuff wrong, and we're not going to recommend prosecution." But if it's Judge Napolitano doing it, yeah, we would probably prosecute.
NAPOLITANO: Yeah, what's wrong is, is this assaults the rule of law. I mean, the rule of law essentially means no one is below the law's protections, and no one is above the law's requirements. And when people are prosecuted for having done far less—I can go through a litany of these with you—
GILLESPIE: Who are some of these people?
NAPOLITANO: Well, the, the Justice Department prosecuted a 22-year-old sailor for taking a selfie and sending it not to Sid Blumenthal where it could be hacked by Russian intelligence—that's Mrs. Clinton's confidant—but to his girlfriend. And somehow, the FBI got their hands on this thing, and it showed that behind him—behind the selfie—was a sonar screen on, on a naval submarine.
GILLESPIE: Right.
NAPOLITANO: He's facing 20 years in jail. A Marine lieutenant in an encampment in Afghanistan sees three al-Qaeda guys dressed as Afghan cops. He quickly emails his superiors to warm him about them. Eventually, there is a shootout. These three guys start shooting at Americans, and the Americans killed them. He made the mistake of sending the email to his bosses on it using his Gmail account rather than his military account. He's facing 20 years.
GILLESPIE: So, I mean, the government does act against people who, you know, have loose lips—
NAPOLITANO: OK, so what is the significance in both of those? It was an act of extreme carelessness. The phrase that Mr. Comey said fairly described what Mrs. Clinton did that it didn't rise to the level of gross negligence. Look, at this level when you are sending top secret information to your friend and he is being hacked by some intelligence agencies of governments that are hostile to us, when you are in the territorial borders of those countries and you're using an insecure mobile device, that's extreme carelessness of the level of gross negligence.
GILLESPIE: But, but—and the real crime here though, then, or the real failure is the FBI or rather the Justice Department. I mean, let's leave aside Mrs. Clinton. Hillary Clinton shouldn't have done this, but what's most worrisome is the larger institutions of government.
NAPOLITANO: Right! Right! The fact that decisions can be made with respect to law enforcement based on politics. My column last week, I called it the Department of Political Justice. I mean, the attorney general in a two week period said the way to fight terrorism is with love. This is after the Orlando massacre, and not let's get rid of no gun zones, not let's let people protect themselves so they're not like fish in a barrel—being shot in a barrel. Then, she publicly acknowledged that she had altered an FBI report in order to create a false impression of what the investigators in Orlando learned. Then, she has this meeting with Bill Clinton. Bill Clinton himself at the time was and remains a target of a federal criminal investigation involving the Clinton Foundation, and involving whether or not Mrs. Clinton—his wife—was engaged in public corruption in order to benefit the foundation while she was Secretary of State.
Then to say, "Well, I can't really make a decision in this case anymore. Even though we didn't talk about it—Bill Clinton and I—I know the impression looks bad, so I'm going to go along with whatever the FBI decides." There is not a single incident in the post-J. Edgar Hoover FBI where the FBI has had the final say. They don't work for the—the Justice Department doesn't work for them; they work for the Justice Department.
GILLESPIE: Well, maybe she's going to reform the Clintons with love.
NAPOLITANO: *laughs* They could use a little.
GILLESPIE: Talk, I mean—one of the things that I know you have—worked on a massive law review article on the function of government is to guarantee natural law. This is a recurring theme in your work.
NAPOLITANO: Yes.
GILLESPIE: Talk about that and why is that…why is that important right now at this point in history, perhaps more than it was 50 or 100 years ago?
NAPOLITANO: So, I start with a proposition: Is there any government behavior that is moral and constitutional in the absence of consent? And from that, I argue that yes, just as I can protect my natural rights—if you steal my property, I can take it back for me. If you pull a gun on me, I can pull a gun on you. If you're stopping me from exercising my free speech, I can move you out of the way. Just as I can do that on my own, a government can do that for me. That's all the government can morally do absent express consent—
GILLESPIE: OK, and that is—that, by the way, is one of the distinctions between being a libertarian really and being an anarchist, that you believe that government can be legitimate.
NAPOLITANO: Yes. If you and I agree that we will abide by a majority vote of a particular group, whether it is voters of the city of New York, the voters of state of New Jersey, the voters of the United States, we can be bound by it. But absent that consent, what right does the majority have to interfere with my liberties?
GILLESPIE: But—
NAPOLITANO: So the only thing the majority can do against my will in a free society is protect natural liberty, curtail me from interfering with someone else's natural rights.
GILLESPIE: So, what is—what is, you know—because—what is natural liberty or…because people will fight over that. And some people will say, you know, coming out of natural law, homosexuality is immoral. It should be illegal, and it should be punished. Or, you know, certain types of other drug use might fit that. I mean—
NAPOLITANO: It—that—OK—
GILLESPIE: How do you define what is, what contravenes natural law?
NAPOLITANO: The natural law argument stated briefly is that our rights come from our humanity, whether you believe from God the father or whether you believe we're just the highest biological events going on on the planet right now—
GILLESPIE: By the way, I think we've been overtaken in the past couple of weeks by something better, but yeah.
NAPOLITANO: What is that?
GILLESPIE: In evolution. Just Pokémon Go or something.
NAPOLITANO: *laughs* I haven't played that yet. Although the kids on the plane were playing and driving me crazy, but anyway.
GILLESPIE: Those kids. They were interfering—you know, you had a natural right to tell them to shut the Hell up.
NAPOLITANO: Right. Very interesting about whether the right to remain silent is a natural right. You and I have a historical hero together: St. Thomas Moore, who actually was executed for exercising his right to remain silent, the refusal to sign a piece of paper that the king is the head of the church on Earth. So, natural law presumes our rights come from our humanities. So, let's take homosexuality. You have the natural right to engage in a physical encounter with any consenting adult you want under natural law. I don't know if Thomas Aquinas would agree with this because he was a priest.
GILLESPIE: Right.
NAPOLITANO: And he would have taught that all sex outside of marriage and unopen to the transmission of life, the tradition of Roman Catholic teaching on sex, is illicit. But in terms of whether the government can interfere with this, the government cannot interfere with the behavior of consenting adults as long as some third party is not harmed. There are two origins for that: the nonaggression principle—I can do what I want as long as I don't aggress on somebody's body or property—and the natural law principle—these rights are mine—and— here is where conservatives get this wrong—they are not subject to majoritarian principles. Libertarians—particularly natural law libertarians—believe that the tyranny of the majority can be as destructive to human freedom as the tyranny of a mad man. Paul Ryan and Mitch McConnell and those guys think they can write any law and regulate any behavior and tax any event, and Mrs. Pelosi agrees, and it's legitimate just because they do it.
GILLESPIE: So, to go back to the example you were saying, you know, maybe the people in New Jersey—and Lord knows, they have been trying—they vote in people who say, "You know what? We're going to raise taxes and we're going to take your money with force of law"—at the point of a gun ultimately if it comes to that—"and we're going to spread it around." Does that contravene natural law or how does that—
NAPOLITANO: OK, great question. It would only be morally valid if I had agreed at the outset that I would be bound by what the legislature does or by what the voters do. I mean, do you know anybody living who was consented to the Constitution? Do you know anybody living who expressly consents to the existence of the government, and consents to what it does? My rights, your rights are integral to our humanity. The government can't take them away by majority vote.
GILLESPIE: But is that kind of just—I mean, is that like a law school argument? That if saying, "Well, I never signed the Constitution. You know, my name's not on it, so I'm not bound by it," or "You know, I vote for—I live in a state—I choose to live in a state that does certain things Should I leave then?"
NAPOLITANO: Jefferson argued in the Declaration of Independence that the only valid moral government is one produced by the consent of the governed. Now, that's not just Jefferson's musings. That's the birthplace of the United States of America. If it is Jefferson's musings, then we are all subject to the majority. If it really means something, then we are only subject to the government when we consent to that government.
GILLESPIE: But is—and is it—but then how do—do you have to consent every day? Do we have to have, like, every day you have to check a box saying, yeah, "Today I consent to the government, so I'll pay my taxes that are due today?"
NAPOLITANO: Look, when the government takes taxes from me against my will, it is stealing my property, and if I don't consent to that, Jefferson would condemn it, because the only moral commercial transaction is one that is voluntary.
GILLESPIE: So, we have in the history of the United States some great libertarian anti-tax protesters, including Henry David Thoreau, including the poet Alan Ginsburg, including Abbie Hoffman, you know, where they would say, "I'm paying"—you know—"I'll pay the portion of my tax that goes to welfare, but I don't want it to go to war," or something like that. And actually that was Thoreau.
NAPOLITANO: Yes.
GILLESPIE: I mean, he was protesting the Mexican-American War.
NAPOLITANO: Listen, I love those guys, and I know that is very impractical.
GILLESPIE: Yeah. What percentage of your taxes do you consent to would you—
NAPOLITANO: None, none. None, because it is hard for me to imagine something that the government does that I would consent to. It doesn't keep me safe. It doesn't even keep me free. It runs schools where they're trying to—where they're trying to turn a pig's ear into a silk purse, and I still have to pay for these schools. It's hard for me to—
GILLESPIE: Wait, did you just call the children and—we're both from New Jersey, so we'll keep it in New Jersey—you're calling kids in New Jersey pig's ears?
NAPOLITANO: Lot of them, like the ones who were next to me on the plane out here who were drinking rum and Coke at five in the morning.
GILLESPIE: So tell me the—you know, what is the alternative to—OK, so you have this law review article where you lay out the case. How do you—that case has been made since Aquinas, since before Aquinas. You can find precursors to it. How do you make that a popular case that actually weirdly, you need a majority of people to believe in that to vote for the government that you want would address upon the idea that we shouldn't be doing all of this?
NAPOLITANO: That's where the left and the right comes together in their love of personal liberty and their disdain for government telling them how to live. Now, I don't know how this is going to happen. I doubt it is going to happen in my lifetime, but if Donald Trump were to appoint people who think the way I do on the Supreme Court, and unique, discreet majorities, five-to-four here, a different five-to-four there, were to prevent the Congress from interfering with personal liberty, or—or—if this attitude became so popular that a majority of the Congress believed it.
GILLESPIE: Right.
NAPOLITANO: Which is almost inconceivable because the government never divests itself of power, but if that were to happen, those are two ways it could come about. The third way that this could come about would be if, if the federal government just collapsed of its own weight, its own indebtedness, and the country broke apart into discreet, smaller governments.
GILLESPIE: Or, and then finally, the biotechnology revolution, and Ron and Rand Paul get cloned.
NAPOLITANO: *laughs*
GILLESPIE: It's a clone army of legislators.
NAPOLITANO: You as well, Nick Gillespie.
GILLESPIE: Yeah, trust me, if I had a clone, I would…I'd be doing a lot more interviews, and I'd be on the beach. Something like my clone—you're talking to my clone right now, actually.
NAPOLITANO: That would be quite a task.
GILLESPIE: So, what, umm…what are the—what are the moments that you're looking forward to over the next five or ten years where this position that you're talking about that—you know, it's basically kind of libertarianism 101 of the government receiving and allowing individuals to freely engage in whatever they want to do as long as they're not hurting other people, as long as they're not taking people's property or money. What, what would be a triggering event that would help people see the light of day, do you think?
NAPOLITANO: Probably financial collapse of the federal government. You know, the debt is—or will be by the time President Obama leaves office about 20 trillion, so that means roughly about 20 cents on every dollar collected by—in taxes has to go to address the debt. Right now, the federal government can't operate at all without borrowing about 50 percent of the money it needs that it's already committed to. This simply cannot last. Unfortunately, the people who have loaned money to the federal government are probably the ones who will lose, and there's some very powerful institutions, including the government of China.
GILLESPIE: Right.
NAPOLITANO: Which owns a trillion dollars of our debt. So, I really think the recklessness begun under Woodrow Wilson, exacerbated under FDR, expanded under LBJ, and then followed by every president—including the sainted Ronald Reagan—since LBJ, extremely expanded by George W. Bush, over the top by Barack Obama. This debt is out of control and will crush us.
GILLESPIE: St. Reagan's first miracle was tripling the national debt, right?
NAPOLITANO: There you go. I mean, he had great one liners, and then, and then a very appealing personality. But he was just another big government guy of his version of big government.
GILLESPIE: Talk in, in a final section here—one of the things that I find fascinating about you is a kind of theorist of libertarianism as well as a purveyor of it on television and in your books and you Creators column that we run at Reason.com—it always gets a lot of response—you're also—you're very Catholic. A lot of libertarians are atheist or hostile to religion and organized religion.
NAPOLITANO: Right.
GILLESPIE: And you're also very anti-abortion, and my guess is that probably 70 percent of libertarians are very pro-choice. Talk a little bit about the connection you see—if there is a necessary connection, or if it is coincidental ,between Catholicism and libertarianism, and then let's talk a little bit about abortion, particularly the Supreme Court's recent ruling striking down restrictions on abortion as not quite legit. So, talk about Catholicism.
NAPOLITANO: OK, a lot of my libertarian friends, when we refer to our religion, we have to put a modifier in there. We don't say Catholic. We don't say Roman Catholic. We say traditionalist Roman Catholic. A conservative Catholic wants to work with the traditional remnants of Vatican II. A traditionalist Catholic wants to reject Vatican II, and return to the teaching of the church which hadn't changed for 400 years as they existed up to the time of Vatican II. Every time I turn around, I am so pleasantly surprised that the number of libertarians who refer to themselves as traditionalists Roman Catholics. My opposition to abortion is not only because of church teaching, but also because of a rational examination of the baby growing in the womb and a belief in the nonaggression principle. The nonaggression principle prevents you from interfering with the life or the property of another human being without moral justification. There is no moral justification for killing a child in the womb!
GILLESPIE: When does—but you are also saying, to push back—when does, when you are calling it a child—when does the clump of cells become a child or is accorded personhood as a legal concept? Is it from the moment of conception, and then what is—and if it is, then that all makes sense, but—
NAPOLITANO: Well, well, look, being in the womb has natural parents and has all the actualizable human genome necessary to produce a Nick Gillespie or a Barack Obama. From that, one, one could rationally argue that the protection of the law is required from the moment of conception.
GILLESPIE: So, and, well—and you see, you know, that vision of Catholic theology—and it's not just Catholics—as totally consonant with libertarian ideas—
NAPOLITANO: Yes, I do.
GILLESPIE: About the—and it's about the individual and the potential of the individual.
NAPOLITANO: Because—we'll get back to where we started—the only moral goal and activity of government is to protect natural rights. The greatest natural right is the right to live. The government's obligation is to protect that.
GILLESPIE: So, talk about the Supreme Court ruling which said in Texas—and a bunch of other states have tried to do this—where they—they can't pass laws banning abortion. You know, there's a Supreme Court…the Supreme Court has ruled that there is a right to an abortion at least for the first trimester. States have been trying to get around that by saying, "OK, you know what? If you run an abortion clinic, you have to…you have to have this kind of procedure in place. You have to have, uh, hospital privileges. You have to do this." Would you agree that that is…that is kind of a backwards way of doing things? Of limiting abortion and, in other circumstances—what's always interesting is that conservatives are like, you know, "You're putting restrictions and bogus regulations, safety regulations on small businesses or on businesses. That's bad." In this case, does the objective overrule the…the means for you?
NAPOLITANO: You know, the Supreme Court's, uh, abortion jurisprudence is such a horrific hodgepodge of an effort to try and find ways to justify abortion consistent with the Constitution. Justice O'Connor in an infamous case called Casey v. Planned Parenthood invented a standard called the undue burden standard, meaning whatever the states do to enhance the health of the mother and the life of the baby—health of the mother from second trimester on, life of the baby from third trimester on—it can't constitute and undue burden on the choice, the right to choose to have an abortion.
Where'd that come from? She just made that up out of whole cloth, and the Supreme Court has stuck with that. It's not used in any other area of human behavior. It's never been recognized as a standard for evaluating the behavior of states consistent with the Constitution. So, Texas now says, "Look, we've just watched this awful trial in Philadelphia. This Dr. Gosnell who was butchering and slaughtering babies that were born alive after the abortion. We don't want that to happen here. If a baby comes out alive, we want to make sure there are medical facilities to preserve the baby's life, and to preserve the mother's life, so we're going to add these regulations to prevent that from happening."
For the Supreme Court to call that an undue burden on abortion is nothing but a political canard intended to please the left who want to have sex without responsibility, without the natural consequences of it.
GILLESPIE: So, uh—well, let's—two quick things: Should abortion—is it a federal issue, or should it actually be decided at the state level of government…or a local level?
NAPOLITANO: Well, it depends on, on what the government does. I mean, the Fifth Amendment prevents the government from taking life, liberty or property without due process of law. That has been interpreted to mean that the government can't permit you or me to take life, liberty or property without due process of law. So, if you want to put that interpretation on it, then the federal government cannot permit the states to permit abortions.
GILLESPIE: Right, although that makes it—that also in a weird way, or a not in a weird way but in a similar way to the Commerce Clause, that could open up all sorts of things where really the federal government calls all the shots.
NAPOLITANO: Well, if the federal government—
GILLESPIE: Which is so—
NAPOLITANO: If the federal government is preventing a butcher from killing a baby, that's a good thing for the federal government to do.
GILLESPIE: I'm saying is it Aquinas who also came up with the idea of subsidiarity and whatnot, so the—
NAPOLITANO: Yes.
GILLESPIE: So this is an ongoing challenge for libertarians. At what level—how many levels of government and at what level do you bring the most purely—
NAPOLITANO: Subsidiarity teaches that the smaller the government—the closer to the human beings being governed—the better it is. And that, that act of governance should not expand to a higher and greater level of government except as is, uh, as is, uh, necessary. On the other hand, the reason we have, uh, a federal government is to prevent things like slavery from happening again. So, if the states were to look the other way while butchers destroy babies in the womb and the federal government didn't do anything about it, it would be violating its obligation under the Fifth Amendment to make sure life, liberty and property are not taken without due process.
GILLESPIE: As a final question: Judge, you had spoken me, you are a paragon of health. As—you get healthier as you get older.
NAPOLTIANO: *laughs*
GILLESPIE: You told me that every year you go through a—
NAPOLITANO: That's against the laws of metaphysics, but it's nice to hear.
GILLESPIE: You go through a five hour physical in mid-November, so it's going to be after 2016. Within 20 to 50 points, is your blood pressure going to be way up here, or is it going to be in the normal range after the election in November?
NAPOLITANO: You know, I, I am, uh, pessimistic. The one side of me is very pessimistic that the Constitution means very, very little other than the establishment of the three branches of government. That the courts willingly look the other way. They let the President of the United States kill Americans for gosh sakes using drones. The other side of me is optimistic that young people will eventually say, "Enough is enough! We're just not going to deal with this. We're not going to pay Woodrow Wilson's debts." I'm not making that up. He borrowed $30 billion to fight World War I, and the principle has yet to be paid back. We've paid $15 billion in interest on that 30 billion to fight World War I, and we just continue to do it.
GILLESPIE: So, the first step is teaching young people who Woodrow Wilson is.
NAPOLITANO: *laughs*
GILLESPIE: And then why we shouldn't pay his debts.
NAPOLITANO: Not from a public schools, because the public schools teach authority. Listen to authority. I say challenge authority at every conceivable—not saying this to Roger Ailes—at every conceivable opportunity! Challenge authority.
GILLESPIE: We will leave it there. Thank you so much, Judge Andrew Napolitano, as always.
NAPOLITANO: Thank you.
GILLESPIE: We have been talking to Fox News' senior legal analyst, author of many books, all of which should be read. Judge Andrew Napolitano, thanks so much.
NAPOLITANO: Thank you, Nico.
GILLESPIE: For Reason TV, I'm Nick Gillespie.
