Constitutional Chaos

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Constitutional
Chaos: What Happens When the Government Breaks Its Own Laws

by Andrew Napolitano. Paperback: 270 pages (Nashville, TN: Nelson
Current, 2004) Amazon Price: $17.81.

“Be not
intimidated… nor suffer yourselves to be wheedled out of your
liberties by any pretense of politeness, delicacy, or decency.
These, as they are often used, are but three different names for
hypocrisy, chicanery and cowardice.”

~
John Adams

Constitutional
Chaos

Constitutional
Chaos: What Happens When the Government Breaks Its Own Laws

is a revealing critique of what happens when the government breaks
its own laws. The Constitution,
the Bill
of Rights
and the inalienable God-given rights of the individual
are being assailed. “Because it breaks the law, the government is
not your friend,” surmises Judge Andrew
Napolitano
. He admits he came to the bench with “impeccable
conservative law-and-order credentials” and left the bench eight
years later cognizant of “how the criminal justice system works
to subvert and shred the Constitution.” Taking a cue from Thomas
Jefferson, Napolitano iterates that eternal vigilance is the price
of liberty.

In the introduction,
Napolitano emphasizes the value of an independent judiciary as the
guardian of liberty. He also compares and contrasts legal
positivism
to his own natural rights philosophy. Commensurate
with the Anglo-American common law tradition, the law wasn't something
that was simply created by the state, but was considered something
to be discovered. Natural rights he asserts are inalienable and
a gift of God. It follows that the State exists to uphold and defend
these rights, and it has no authority to subvert them. No person
shall be deprived of life, liberty or property without due process
of law.

The State
is assaulting the Bill of Rights on all fronts!

A war is being
waged against the Bill of Rights on all fronts. Constitutional
Chaos documents how judges are increasingly encroaching upon
freedom of speech and press with ridiculous gag orders that carry
heavy fines. Also, the Judge reveals how the Second Amendment has
increasingly become a dead letter — and the right to keep and bear
arms is egregiously encroached upon throughout much of the Untied
States.

In fact, Solicitor
General Seth Waxman, under the Clinton administration, proclaimed:

More specifically,
the Supreme Court and eight United States Courts of Appeals have
considered the scope of the Second Amendment and have uniformly
rejected arguments that it extends firearms rights to individuals
independent of the collective need to ensure a well-regulated
militia.

Waxman also
quoted another Justice Department counsel as an authority, declaring:
"In light of the constitutional history, it must be considered
as settled that there is no personal constitutional right, under
the Second Amendment, to own or to use a gun." The Judge takes
issue with this shoddy revisionism and blatant usurpation of the
Second Amendment, and he documents how self-defense has steadily
been criminalized. What part of “shall not be infringed” don't they
understand anyway? Napolitano squarely challenges absurd notions
that it represents the government's right to procure arms for a
militia. After all, our founding generation held the belief that
a well-armed citizenry served as a deterrent to political repression.

Napolitano
judiciously chronicles the subversion of property rights by eminent
domain and asset forfeiture abuses. It is readily observable in
our time that the Fifth Amendment is routinely disregarded by greedy
government officials. The Takings Clause therein provides: "…[N]or
shall private property be taken for public use, without just compensation."
The Kelo v. New London decision has solidified a horrendous
trend, and allows corporations and greedy local governments to conspire
to use eminent domain in order to filch private property for the
benefit of a powerful combination of commercial developers and government
officials greedy for tax revenues or kickbacks. Asset forfeiture
abuses have gone awry in recent years. Many people have been deprived
of their property without due process of law, without even the benefit
of a hearing.

Napolitano
presents the ominous case of Lucas v. South Carolina Coastal
Council, 505 US 1003 (1992). "In 1986, Lucas paid
$975,000 for two beachfront residential lots in a residential development
on the Isle of Palms, a barrier island near Charleston, South Carolina."
Just like his neighbors, Lucas had "intended to erect single-family
residences on the lots…" Within two years, the state of South
Carolina deemed his property a "critical area" to be protected
from beach erosion. Consequently, he was prohibited from developing
the lots. As Napolitano sardonically surmises, "Essentially,
the government told Lucas, u2018It is too bad that you paid almost one
million dollars for the land, but you're stuck with these empty
lots.' A spineless Supreme Court of South Carolina ruled this perfectly
acceptable…" since it served the public interest, and was "designed
to prevent a serious harm." The case was appealed to the U.S.
Supreme Court, which "gave a minor procedural victory to Lucas,
while all but destroying private property rights" with their
flimsy rationale. The ruling declared that Lucas was only entitled
to "just compensation" if the government's regulation
had rendered his property "valueless." Apparently, the
individual property-owner is entitled to no just compensation unless
he is completely deprived of any value in his property. Thus, the
government has an instrument to restrict development under the phenomenon
of regulatory takings, effectively robbing a property owner
of value in his property. The drama doesn't stop there. After, the
state finally compensated Lucas and took title to the property,
with its own money at stake, the state didn't even think the roughly
$90,000 difference between the price of non-development and development
was worth it. Notwithstanding the fact that the owner of an adjacent
residence made an offer with the intent of keeping the property
undeveloped, the State ultimately sold it to the higher bidder who
hoped to develop it.

u2018Law and
Disorder: Special Entrapment Unit'

“[The prosecutor]
will pick people that he thinks he should get, rather than pick
cases that need to be prosecuted. With the law books filled with
a great assortment of crimes, a prosecutor stands a fair chance
of finding at least a technical violation of some act on the part
of almost anyone. In such a case, it is not a question of discovering
the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching
the law books, or putting investigators to work, to pin some offense
on him. It is in this realm in which the prosecutor picks some
person whom he dislikes or desires to embarrass, or selects some
group of unpopular persons and then looks for an offense, that
the greatest danger of abuse of prosecuting power lies. It is
here that law enforcement becomes personal, and the real crime
becomes that of being unpopular with the predominant or governing
group, being attached to the wrong political views, or being personally
obnoxious to, or in the way of, the prosecutor himself."

Former
Supreme Court Justice Robert Jackson,
explaining the vast power of prosecutors, which is ever liable to
abuse

The Judge devotes
a chapter to the practice of entrapment which he rightly characterizes
as a perversion of the policing function. When investigations turn
to instigations and incitements to commit crimes then the rule of
law is desecrated and the rights of the individual are trampled
under foot. Making a suspect run a gauntlet of traps and snares
is not justice, but rather it is injustice and a recipe for constitutional
chaos. Napolitano surmises,

Entrapment
is to law enforcement what practice development
is to the legal profession. It's a business builder. u2018Not enough
crime to keep us busy,' or u2018someone we need to get off the street,'
the police might say, u2018Well, let's stimulate some crime by tossing
out a lure or two. Let us create some business.'

Anyway, Napolitano
chronicles a long train of abuses and usurpations in criminal investigations,
and reveals from personal experience how abusive the criminal justice
system really is. He recounts how two undercover New Jersey state
troopers posing as extortionist mobsters sought to entrap an Italian
restaurant owner for possession of an illegal weapon by continuously
threatening him and demanding “protection money.” Every time they
raised their demands. When the restaurant owner borrowed a gun from
a friend and pulled it on his assailants after continued threats,
they announced that they were cops and arrested him. Besides, the
fact that the store owner was exercising his constitutional right
to keep and bear arms, the man brandished a weapon to deter the
aggression of what he perceived to be violent extortionists. The
violent extortionists were just ruffians hiding behind a badge and
gun with no respect for the Constitution, and most importantly the
rights of the poor man that was subjected to harassment. The unscrupulous
efforts of these crooked cops were nothing more than entrapment
plain and simple. At the pretrial hearing, the troopers could not
even substantiate who authorized their so-called investigation —
or more aptly instigation. Anyhow, Napolitano rightly threw
the case out against the poor man. The late Justice Byron White
wrote that the government may not “originate a criminal design,
implant in a man’s mind the disposition to commit a criminal act,
and then induce commission of the crime so that the government may
prosecute.”

Napolitano
makes it clear that quite a few prosecutors, judges and law enforcement
agents that have taken an oath to uphold and defend the Constitution
are among its biggest enemies, as they embrace the modus operandi
of entrapment and instigation or turn a blind eye to such injustice.
Increasingly, investigators are becoming instigators and
prosecutors are becoming persecutors. Witnesses, informants,
agent provocateurs, and assorted ruses (often guilty criminals themselves
trying to save themselves) are routinely bought and paid off. They
might even get their rent or car payment paid for. These informants
are little more than paid perjurers with a financial incentive to
make the “truth” subordinate to their pecuniary gain. There is a
higher law that decries this subversion of justice. Proverbs 17:23
proclaims, "A wicked man accepts a bribe behind the back to
pervert the ways of justice." Deuteronomy 16:19 declares, "You
shall not pervert justice; you shall not show partiality, nor take
a bribe, for a bribe blinds the eyes of the wise and twists the
words of the righteous." Napolitano takes issue with the modus
operandi of lying, cheating and forcible coercing in the course
of police investigations, and he chronicles some of the more nefarious
abuses.

Entrapment
is also a convenient way to stack charges. What better way to coerce
a plea bargain, dispense with the formality of a public trial and
due process, then to instigate a suspect into committing a crime
or another crime, and then nabbing him? Almost ninety-percent
of federal cases end in plea bargains, as those stacked charges
and mandatory federal sentencing guidelines can prove to be a veritable
nightmare for the accused. How's that for judicial economy? Not
surprisingly, with such nefarious tactics in practice, people are
seldom convicted of the criminal act that they were originally suspected
of having committed. With such reprehensible tactics in common practice
in many jurisdictions, it’s not surprising that other abuses such
as perjury, evidence tampering and outright evidence planting are
increasingly prevalent. And with so much raw power, settling personal
vendettas may become the prerogative of prosecutors and police in
a position of power. But never underestimate their benevolence,
as perhaps they will go easy on a suspect and blackmail them. After
all, one can always opt to be an instigating ruse or informant to
save their hide from jail-time.

Some suspects
might be allured by the promise of quick cash and then charged with
wire fraud. Others may be tempted to do wrong, and then summarily
blackmailed into being a ruse or informant. Those that get in a
petty spat or fall prey to a trumped up complaint might net surveillance
which starts the ball rolling in the direction of instigation. Rather
than resolve to make peace, police begin looking for weaknesses,
manufacturing probable cause on flimsy pretexts, and tempting suspects
with contraband, stolen goods, or drugs, and they will use ruses
to tempt a suspect to steal or shoplift. Seriously, is that
what law enforcement is really about? Putting peer pressure on the
young and nave to commit wrong, break the law, only so they can
prosecute them for it? It makes no difference whether one has a
criminal record or not — as it is the modus operandi in many
jurisdictions. Such disreputable actions desecrate the rule of law,
no less than the rights of the accused and due process, and it ultimately
undermines respect for lawful civil authority. Yet it happens all
the time.

Napolitano
meticulously documents how Orwellian the administration of justice
is become when those charged with enforcing laws routinely break
the law:

Once the
government invests time and money to trap you, it will not stop.
When it gets in so deeply that lawful means can no longer trap
you, it will not stop. And if there is no law that criminalizes
your conduct, it will create one. What can these government agents
think of the oaths they swore to uphold the law?

It is clear
that law enforcement should not be in the business of creating crime
by entrapment schemes! Yet many agents are in the business of selling
(or just giving away) stolen merchandise, selling (or just giving
away) drugs, helping manufacture drugs, and tempting people to shoplift
or steal– all in order to entrap people and blackmail or prosecute
them. Is there not enough legitimate crime to keep them busy? When
an investigation starts, and law enforcement starts a ball
rolling in the direction of instigation — with their entrapment
scheming — then it is at the moment that the suspects’ due
process rights have been trampled. The police have assumed the role
of judge, juror and executioner. Rather than looking for objective
evidence of wrong-doing, they often began their entrapment schemes
on the slightest whim. Likewise, being perceived as obnoxious or
being attached to the wrong political views becomes a crime. How
many hapless innocents (and for that matter those with no prior
criminal history) have been caught in this tangled web of constitutional
subversion? Likewise, even for those who parry the traps, and gain
cognizance of the scheming — the ordeal can be intimidating and
traumatic.

Under the nebulous
and palpably unconstitutional U.S.A. Patriot Act, the proviso for
sneak-and-peek searches gives federal officials a carte blanche
for a general search of your residence or business premises, and
even without notice. In practice, the FBI bureaucrats can write
their own warrants, merely by invoking the rubric of national
security. Yet the Fourth Amendment states, "The right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized"
[emphasis mine]. This right was claimed by our founding fathers
against the nebulous "writs of assistance" or general
(non-specific) searches which allowed Tory officers to go on fishing
expeditions, and search a man's premises in order to justify
entrapping him. The Patriot Act is an open-ended assault on the
Forth Amendment, and it completely undermines two hundred and twenty-five
years of Anglo-American jurisprudence. All the probable cause they
need these days is someone reporting you with trumped allegations.
Some have an uncanny penchant for claiming anonymous complaints
to manufacture probable cause.

Finally, if
society was brutally honest about how things worked in the real-world
criminal injustice system, then there would most assuredly be a
television show called Law and Disorder: Special Entrapment Unit.
It would have this hard-hitting narrator prologue:

u2018In a criminal
injustice system, the people are represented by two separate and
yet equally unscrupulous groups, the police who instigate crime,
and the prosecutors who withhold exculpatory evidence exonerating
the hapless innocents caught in their traps. These are their stories.'

The U.S.
Department of In-justice!

"How
often, or on what system, the Thought Police plugged in on any
individual wire was guesswork. It was even conceivable that they
watched everybody all the time. But at any rate they could plug
in your wire whenever they wanted to. You had to live — did live,
from habit that became instinct — in the assumption that every
sound you made was overheard, and, except in darkness, every movement
scrutinized."

~
George Orwell, 1984

In the closing
parts of the book, Napolitano reveals the culture of lawlessness,
conceit, and personal ambition which saturates the U.S. Justice
Department. Many of their actions and conduct in various cases clearly
runs roughshod over the Constitution. Such a culture has given rise
to a blatant disregard for the Constitution, due process of law
and the rights and dignity of the individual. Napolitano iterates
some of the worst abuses from the Clinton-Reno reign of terror from
Waco to Ruby Ridge, and paints a startling picture of how this maladministration
of justice is fast becoming the norm.

He offers a
more startling prognosis about the post-9/11 Patriot Act boondoggles
and blatant efforts to subvert due process of law. Many abusive
officials are looking for the creative pretext to subvert the Writ
of Habeas Corpus
. Now, we live in a time where a suspect can
feasibly be detained indefinitely without trial by the U.S. government,
or without even having the charges named against him. The DoJ "has
gone as far as prosecuting lawyers for doing their jobs,"
notes Napolitano. The DoJ has come up with the egregious notion
that an attorney, who gives counsel to a terror suspect,
may be deemed a terrorist themselves and part of a criminal conspiracy.

While judicial
rubber-stamping of investigations and searches were problematic
beforehand, the Patriot
Act
removes judicial oversight over investigations. In some
cases, federal agents can write their own search warrants utilizing
a nebulous instrument known as a national security letter. Federal
agents have proven a willingness to manipulate their cases to get
a trivial touchstone of terror suspicion that they
themselves might manufacture by manipulation of a suspect, as the
Internet is their playground after all.

In our times,
federal law enforcement is being vested with frightening powers
of surveillance and control with little if any judicial oversight.
They claim the right to roving wiretaps, and without so much as
a court order. But rest assured, the Bush administration assures
us that the Justice Department has checks in place. Checked by whom?
Oh yeah, they are checked by a couple of lawyers within the Justice
Department!?!? How is that for federalism and separation of powers?
Thomas Jefferson rhetorically asked, "What has destroyed liberty
and the rights of man in every government which has ever existed
under the sun? The generalizing and concentrating all cares and
powers into one body…" We would do well not to forget that
maxim. All the more, the federal usurpers continue to swallow up
law enforcement powers — and they consider themselves a law unto
to themselves.

Our liberties
were not won in a day, and we should not let them disappear in a
day. Napolitano methodically documents the encroachments upon vital
constitutional liberties rationalized because of the war on terror,
and he makes it resoundingly clear that constitutional liberties
are not put on the shelf in war-time:

The Constitution
of the United States is a law for rulers and people, equally in
war and in peace, and covers with the shield of its protection
all classes of men, at all times, and under all circumstances.
Ex Parte Milligan (1866).

What is more,
a most ominous precedent is being set for having trials conducted
in secret with no public scrutiny. Such Stalinist tactics subvert
the rule of law. As the great historian of liberty John Acton observed,
"Everything secret degenerates, even the administration of
justice; nothing is safe that does not show how it can bear discussion
and publicity." Yet the Justice Department insists on continually
enveloping its activities in a web of secrecy and purports in some
cases that no judicial review is even necessary. And people should
never lose sight of the reality that the USA Patriot Act affects
all investigations, not just so called counter-terrorism.

The solace
for victims of injustice

In Plato's
The
Republic
, Thrasymachus postulated, "Justice is nothing
more than the will of the stronger." Sometimes, in this troubled
world, it certainly seems that way, as some police, magistrates
and judges have lost their sense of fair play, justice, respect
for the rights and dignity of the accused.

In 1750, Rev.
Jonathan Mayhew, a New England pastor in colonial America, rightly
proclaimed:

It is blasphemy
to call tyrants and oppressors, God’s ministers. They
are more properly the messengers of Satan to buffet us.
No rulers are properly God’s ministers, but such as are
just, ruling in the fear of God. When once magistrates
act contrary to their office, and the end of their institution;
when they rob and ruin the public, instead of being guardians
of its peace and welfare; they immediately cease to be the
ordinance and ministers of God; and no more deserve
that glorious character than common pirates and highwaymen.
So that whenever that argument for submission, fails, which is
grounded upon the usefulness of magistracy to civil society, (as
it always does when magistrates do hurt to society instead of
good) the other argument, which is taken from their being the
ordinance of God, must necessarily fail also; to person of a civil
character being God’s minister, in the sense of the apostle,
any farther than he performs God’s will, by exercising a just
and reasonable authority; and ruling for the good of the subject.

Perhaps the
only remaining solace for victims of harassment, criminal injustice
and constitutional chaos is that God judges the magistrates
when they walk astray, abuse their power, suborn perjury, instigate
crime, harass people, and otherwise subvert justice.
Tyrants forfeit eternal reward and may bring eternal condemnation
upon themselves and kindle the judgment of God.

Ending the
Constitutional Chaos

This insightful
book poses some solutions to the constitutional chaos. The Judge
also considers an abdication of the nefarious sovereign immunity
doctrine and likewise making abusive government agents culpable
for their illegal and immoral actions. Soliciting a felony is a
felony for crying out loud!!! Let us put a stop to it!! Also, applying
the law equally to everyone is a step in the right direction, as
this would bar investigators from breaking the law ostensibly to
enforce it, such as their schemes of selling illicit drugs, embargoed
goods or stolen merchandise for example. According to federal law,
"Whoever… gives, offers, or promises anything of value to any
person, for… testimony under oath… shall be fined… or imprisoned
for [up to] two years, or both." There is a comparable common
law rule as well. The government encroaches upon this law all of
the time. Applying the law equally to law enforcement would eliminate
the absurdity that the bribery statute doesn't apply to them. Government
bribery schemes which put informants and ruses up to the task of
subverting justice, instigating crime, and offering perjured testimony
would be illegal as it well should be.

A stalwart
constitutionalist, Napolitano is adamant in his belief in God-given
natural rights as opposed to the philosophy of legal positivism,
which casts the State as the grantor of all rights and freedom.

The Roman Juvenel
once posed the rhetorical question: “Sue quis ipsos custodiet custodes?”
That is to say, “Who will guard the guardians?” The founding fathers’
answer to this perennial question was a system of checks and balances,
a widespread dispersal of power and authority, an independent judiciary,
and fortification of the Anglo-American common law tradition by
a written Bill of Rights in the state constitutions as well as the
federal constitution. The founding fathers were keenly aware of
sinful man’s limitations, human frailty and that power corrupts.
In light of this, Napolitano never let his proper judgment of the
law give away to a misplaced confidence in the police and prosecutors.
The Old Whig tradition rested in “jealousy” not “confidence,” and
the people must be jealous for their liberties. As Thomas Jefferson
so adequately surmised, “Free government is founded in jealousy,
not confidence. It is jealousy and not confidence which prescribes
limited constitutions, to bind those we are obliged to trust with
power… In questions of power, then, let no more be heard of confidence
in men, but bind him down from mischief by the chains of the Constitution.”

As a final
point, it is you the citizen who must voice your opposition to this
egregious assault upon our constitutional freedoms. “The People
are the only sure reliance for the preservation of our liberty,”
avowed Thomas Jefferson. But don't take my word for it — investigate
for yourself. After reading Constitutional Chaos, please
consider reading The
Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are
Trampling the Constitution in the Name of Justice
, which
is written in part by Paul
Craig Roberts
. I also recommend that you evaluate the concept
of restorative justice advanced by Charles Colson of Prison Fellowship
Ministries in his timely book Justice
that Restores
.

Every now
and then, good citizenship means resoundingly proclaiming that we're
not gonna take it anymore! It has high time we speak out and
take political action in the courts, legislatures, and at the grassroots
level. But I wouldn't count solely on the sense of justice of the
same Congress that passed the Patriot Act, so I urge and implore
the financially-able to consider supporting public-interest constitutional
law firms like the Rutherford
Institute
based in Charlottesville, Virginia. Likewise, there
is the Institute for Justice, which
is a rock-solid libertarian public interest law firm. Both firms
are doing a yeoman's job, but they are much more worthy organizations
for your patronage than the American Communist Lawyers' Union (ACLU).
Likewise, consider supporting LewRockwell.com.

Read this
book!

All things
considered, Constitutional Chaos is a vitally requisite contribution
to the political discourse. This is a must-read book, which I whole-heartedly
endorse. Andrew Napolitano meticulously documents the abuses and
usurpations, and shines light on the dark shadows of constitutional
chaos for the world to see. Napolitano's book is a clarion call
for citizen action. We must demand a return to constitutional government,
and announce our disappointment with abuse by law enforcement and
prosecutors. Moreover, this book is a summons for honorable magistrates,
government attorneys and upright judges to interpose against the
usurpations of our cherished and hard-won constitutional liberties.
I hardly presuppose that all law enforcement is corrupt — far from
it — as there are peace officers driven by a sense of fair play,
honesty, integrity and decency. In their capacities as public servants,
they should never forget that their obligated to uphold and defend
the Constitution, and to respect the rights of the individual. They
should be guided by a spirit of fair play, decency, and justice.
Justice after all encompasses the search for the truth. Nonetheless,
we should not ignore the perilous assault on the Bill of Rights,
and the lives destroyed by the chaos of constitutional usurpation
in our midst.

Finally, remember
you have the right to remain silent, and if you don't know your
rights than you might as well not have any — so, learn the Bill
of Rights
and don't count on the powers that be to give you
any constitutional lessons.

Judge Andrew
Napolitano is a graduate of Princeton University and the Notre Dame
School of Law. Napolitano was the youngest judge to receive a lifetime
appointment to a New Jersey Court. He presently serves as senior
judicial analyst for the Fox News Channel, and he even steps on
the toes of that sniveling pundit Bill O'Reilly from time to time.

April
8, 2006

Ryan
Setliff [send him mail]
is an aspiring jurist, an active Bible preacher in the pulpit, freelance
journalist and a southern conservative.

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