Judge Andrew Napolitano on Chaotic Courts and 'Unconstitutional' Justice in the United States

Interview with Scott Smith

The Daily Bell is pleased to present an exclusive interview with Judge Andrew P. Napolitano.

Introduction: Judge Andrew P. Napolitano joined FOX News Channel (FNC) in January 1998 and currently serves as the senior judicial analyst. He provides legal analysis on both FNC and FOX Business Network (FBN). He is also a fill in co-host for "FOX & Friends" regularly and co-hosts FOX News Radio's Brian and The Judge show daily and is host of FreedomWatch on Foxnews.com. Judge Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. While on the bench from 1987 to 1995, Judge Napolitano tried more than 150 jury trials and sat in all parts of the Superior Court – criminal, civil, equity and family. He has handled thousands of sentencings, motions, hearings and divorces. For 11 years, he served as an adjunct professor of constitutional law at Seton Hall Law School, where he provided instruction in constitutional law and jurisprudence. Judge Napolitano returned to private law practice in 1995 and began television broadcasting in the same year. Judge Napolitano has written five books: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws; a New York Times bestseller, The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land; A Nation of Sheep; Dred Scott's Revenge: A Legal History of Race and Freedom in America; and his most recent book is another New York Times bestseller, Lies the Government Told You: Myth, Power and Deception in American History.

Daily Bell: Thanks for visiting with us. Tell us a little bit about your background, where you grew up and how you became interested in being a judge.

Judge Napolitano: I was born in Newark NJ, attended public schools, spent my sophomore year in high school as a page in the U.S. House of representatives and attended the private school for pages in the Library of Congress. I'm a graduate of Princeton University and the University of Notre Dame Law School. My academic interest in the law drew me away from private practice toward the judiciary. I received my initial appointment from Governor Tom Kane and my lifetime appointment from Governor Christine Todd Whitman.

Daily Bell: How did you make the leap to FOX News?

Judge Napolitano: At the time that I left the bench, something that rarely occurs during a lifetime appointment – and with the permission of the Chief Justice – I held a press conference in which I blasted judicial salaries. I also blasted the inability of judges to supplement their income by doing teaching and writing. One of the people that happily read the interview was the then President of CNBC, who called me up and said, "Now we're about to cover this crazy trial in California and I thought about putting a judge on TV to second guess this judge." Then he asked me "Maybe you have heard of him, his name is Lance Ido?" Of course it was the OJ Simpson trial and I ended up covering it four-days a week for 13 months. The President of CNBC would go on to become the founder of FOX; it was Roger Ailes. He was the one, of course, who brought me over.

Daily Bell: You are more libertarian than conservative and obviously a friend of Ron Paul's. When did you get to know Ron Paul and learn about the Austrian, free-market school?

Judge Napolitano: I got to know Ron Paul over the past four or five years when after a couple of interviews on air, he invited me to spend a little time with him and some other Congressman in DC and discuss the Constitution over dinner. My attraction to the Austrian view of economics was generated early on in my college years when I rebelled against the Keynesian Economics being taught at Princeton and just about everywhere else. I couldn't put an exact date on either of these events for you but one is about 5 years ago and the other is about 35 years ago.

Daily Bell: Would you classify yourself as an Austrian?

Judge Napolitano: I would classify myself as a person who believes in the Austrian School of Economics – absolutely. The books that have influenced me the most in my life, I would list as: Orthodoxy, by G.K. Chesterton, The Conscience of a Conservative by Barry Goldwater and The Road to Serfdom by F.A. Hayek

Daily Bell: You were the youngest life-tenured Superior Court judge in the history of the State of New Jersey. How did your views evolve from this point forward to where you are today?

Judge Napolitano: Well, being the youngest was a coincidence of biology, I was appointed very young because Tom Kane, Governor Kane at the time, was interested in very young people who wanted to make the judiciary a life-time career. The New Jersey constitution requires that you practice law for ten years before you are eligible for the full-time judiciary; I began practicing law at age 25 and was appointed to the bench at age 36, so that is about as early as you could possibly do it. Then I wrote a book about Constitutional Chaos, What happens when the government breaks its own laws. I have always been on the Libertarian side of things but being a judge in a criminal court was enough to lock the door and throw away the key, so to speak. You spend so much of your time observing the government's efforts to evade, avoid and otherwise dodge the Constitution. And if you believe the Constitution means what ii says, and you take your oath seriously, then you generally become scandalized at the things done by both the police and prosecutors. I described this intellectual odyssey in this book.

Daily Bell: What is justice in your opinion – having sat on the bench?

Judge Napolitano: I don't think I can answer that in a simple paragraph. But justice is the enforcement of the fair response to human behavior consistent with natural law and consistent with the rule of law. So that means that you have to accept that the Declaration of Independence is not just a Jeffersonian musing, but is fundamental to American values. Our rights come from our humanity, which is a gift from God; they don't come from the government, so they can't be taken away by the government. You have to accept the role of government as an arbiter with respect to the infringement of those rights whether by an executive or legislative branch, or whether by a private person. Really there is no formula other than recognizing natural rights, accepting the fundamental law of the land, being fair and being brutally honest and having no interest in the outcome.

Daily Bell: Does President Barack Obama understand the Constitution in your opinion?

Judge Napolitano: I don't think so, unless the Barack Obama that we witness in the White House is putting on an act. I mean to him the Constitution is no impediment to the exercise of judicial power. I have to modify this by saying rarely have we had a President who understood the Constitution. Grover Cleveland understood the Constitution, Thomas Jefferson for the most part of it understood the Constitution; Andrew Jackson partially understood the Constitution but very few others have.

Daily Bell: Are sentences for white-collar securities crime, especially insider trading, adequate and just?

Judge Napolitano: Well for the most part they are far too harsh because they are an effort by the government to regulate the free market by a weird and bizarre and expansive definition of who or what an insider is. Basically the government should do little more than preserve freedom, which means make it a crime to commit fraud on someone. It shouldn't be a crime to take advantage of your knowledge of the market place in order to make money as long as the playing field is level.

Daily Bell: You served as an adjunct professor of Constitutional law at Seton Hall Law School, where you provided instruction and jurisprudence. Is the law constitutional these days? What does that mean?

Judge Napolitano: Yes, I did that for 11 years. You mean are laws written to the Constitution? The answer is no. Most members of Congress couldn't care less what the Constitution says. Even though they have taken an oath to uphold it, preserve it, protect it and defend it, which was the same oath I took when I became a judge. I was interviewing a Congressman from South Carolina, Jim Clyburn, who's the number three ranking Democrat in the house, and I asked him quite simply and plainly where in the Constitution is the federal government authorized to manage health care? He told me, "Judge, most of what we do down here, (referring to Washington) is not authorized by the Constitution." The torturing and twisting of the plain language of the Constitution in order to permit the expansion of the federal powers has resulted in the loss of liberty and freedom of choice.

Daily Bell: What is the state of constitutional scholarship in the United States?

Judge Napolitano: Well constitutional scholarship is all over the place. I mean there are those who write scholarly works of art in order to justify the government's exercise of power – not granted by the Constitution – and there are those who write scholarly works in order to keep the government in line.

Daily Bell: Why don't lawyers realize how far they have strayed from constitutional principles?

Judge Napolitano: Well because most of them don't deal with the Constitution on a daily basis. Unless you are a prosecutor or a judge or a criminal defense lawyer or involved in public advocacy – like the ACLU or the Institute for Justice or one of these think tanks devoted to protecting freedom and property – you generally don't deal with the Constitution, even though this is one of the most fundamental texts in any American law school. And even though proficiency on this area of law is required by every American bar examination, it is a subject matter that lawyers lose track of almost immediately after they take the bar exam. Most lawyers deal with issues that do not effect the government and constitutional law.

Daily Bell: Tell us about your book, Lies the Government Told You: Myth, Power, and Deception in American History.

Judge Napolitano: It is a rollicking tour from 1776 to 2008 about the classic lies the government has perpetrated on the people and the political, legal and moral effect of accepting those lies. I argue that the dirty, little secret of American history is that the Constitution is rarely enforced and the government gets away with its violation of the Constitution in the most explicit ways. It basically seeks to point out government's myth-making when it comes to such constitutional points as, "all men are created equal," or "Congress shall make no law abridging a freedom of speech," or "all persons shall be secure in their property, houses, possessions." I argue that FDR caused Pearl Harbor, that Lyndon Johnson created out of thin air the Gulf of Tonkin, that George Bush knew that there were no weapons of mass destruction in Iraq and was in fact authorizing his agents to torture people. I catalogue these and government lying about them in the book.

Daily Bell: What do you think of the Constitution and how it was written and the principles it espouses?

Judge Napolitano: When it was written it had some defects in it. It permitted slavery; it even permitted the slave trade. So one can love the restraint to impose on government, and one can love the bill of rights. One can appreciate the separation of powers within the federal government and the federal system as it relates to sovereign states that can act as a check to the federal government. But once we overcame things like discrimination based on race, and discrimination based on gender, it is a brilliant document that guarantees liberty and ensures the separation of power. Now unfortunately it has been harmed by at least two amendments that are unconstitutional. Now here is an interesting question: Can a part of the Constitution be unconstitutional? The answer is yes. The 16th amendment and the 17th amendment encapsulate the income tax and the changing of the manner in which the US Senate is elected. So the Constitution we have today is nowhere near the beautiful balanced instrument of limited government that the framers gave us. It's barely a shadow of it's original self.

Daily Bell: Some say the Constitution was a step backward from a less structured federation of states. Agree or disagree – and why?

Judge Napolitano: I agree. I do agree. I think that we would be far happier today under the Articles of Confederation than under the current Constitution, but we would also be happier today under the Constitution were it interpreted as it was intended to be. Unfortunately, almost from the beginning, and certainly with Chief Justice John Marshall, we bear witness to the march away from state sovereignty, the march away from individual liberty and the march toward federal dominance. This march has accelerated and decelerated at various times in our history. Usually at wartime it becomes more accelerated. But from the end of the Civil War and certainly from and after the FDR era, the march has consistently been away from state sovereignty away, from individual liberty and toward federal dominance.

Daily Bell: Did the Constitution lay the foundation for the War Between the States?

Judge Napolitano: I think War Between the States was fought over the issue of federal dominance. I think slavery was not the reason for the War Between the States. I think that Lincoln was a dictator who was terrified that by the loss of tariffs from southern ports – about 55 million dollars a year in 1860. It was a huge portion of the federal government's income, which consisted at the time of tariffs, user fees and land sales. It was the loss of those ports that caused Lincoln to wage war against the states. I don't think it was the Constitution that facilitated war. I think it was monster government that facilitated the War Between the States. I think slavery would have been eradicated on its own, much as it had been in Puerto Rico and Brazil and Portugal and Great Britain and even years earlier in western Europe.

Daily Bell: Would America have been better off without a Constitution?

Judge Napolitano: No, I don't think so. America is better off with a Constitution if it meant what is said and interpreted as written. Because it does say, on its face, that there are certain guarantees. Regrettably, the government has rarely upheld those guarantees. The beauty of the Constitution was the idea of checks and balances. Men, as Madison said, "are not angels." They will be drawn more toward power than toward liberty if there isn't something to check the drive toward power.

Daily Bell: Were the Articles of Confederation superior?

Judge Napolitano: I can't answer that because they didn't exist long enough to know that. They certainly permitted far weaker central government, far less federal tyranny, and far more state sovereignty than we have today. The people who took over the government in the years immediately following the Constitution – Washington, Adams, Hamilton and the Federalists – skewed the laws of the land and the behavior of the judiciary in the earliest parts of our history. Had John Marshall never been born, or had he never been the Chief Justice, we would have a lot more freedom and a lot more choices today. President Reagan used to remind people that the beauty of the country is you could vote with your feet. Meaning if you don't like the pervasive taxation in Massachusetts you can move to New Hampshire; if you don't like the pervasive regulation in New Jersey you can move to Pennsylvania. The more centralized the power is in Washington, DC, the less differences there are between the states. Then there's nowhere to go.

Daily Bell: And what about your book, Constitutional Chaos? What happens when government breaks its own laws?

Judge Napolitano: Constitutional Chaos is my own odyssey on the bench and intellectual journey toward libertarianism. It also catalogues, breaches behavior of the government breaking its own laws. Trying a judge for example for bribery and bribing witnesses to testify against him. So then the prosecution in the courtroom committed the very same crime that they were prosecuting the defendants for. Another book, Constitution in Exile is a walk through the Constitution, from the first phrase to the end of the last amendment and an explanation of what it should mean, and what it was intended to mean – versus what it has become. A Nation of Sheep is pretty much a catalogue of the most exquisite violations of the Constitution and the post WWII era. It shows how we have lost liberty and the states have lost sovereignty as a result of these violations, which were sanctioned by the Supreme Court or upheld by voters.

Daily Bell: When did economics and law diverge? When law departed from Common Law?

Judge Napolitano: No ... when the government violated the Constitution by authorizing the states to interfere with private contracts and then eventually interfering with private contracts itself. I mean much of this was done under the Commerce Clause. The Commerce Clause was written to keep commerce between the states regular, not to enable Congress to regulate every aspect of the movement of goods from one state to another. Once Congress achieved that power and the court condoned it, we found ourselves in a period where the Congress would write any law, regulate any behavior and tax any event subject to what it could get away with politically. Surely the legislature should be able to abrogate the common law, I mean there are aspects of the common law we would find repugnant today. For the most part common law was a codification of Western values enforced by British and ultimately English judges. It did things like prevent the King from crossing the threshold of your cottage or your palace depending upon your state in society. A person's home was his castle. That wasn't written down anywhere or in any stature enacted by the parliament but it was part of the common law. So there are a lot of traditions in the common law.

Read the rest of the article

June 7, 2010

Copyright © 2010 The Daily Bell