The Judge Vindicated

by Max Raskin
by Max Raskin

DIGG THIS

For those who don’t know Fox News Analyst Judge Andrew Napolitano, it might be surprising to see him scheduled to speak at the Mises Institute’s 25^th Anniversary in New York City. The Institute espouses a belief in limited government and personal liberty, proverbial garlic to the vampiric Faux News. But Judge Napolitano is different. He is a firm believer in the Constitution and not only disapproves of President Bush’s disregard for civil liberties, but also for his lack of fiscal responsibility.

Not surprisingly, his defense of due process and the Bill of Rights drew the ire of National Review. After Napolitano attacked the PATRIOT Act in a Wall Street Journal op-ed, National Review senior editor, Ramesh Ponnuru directed his own invective against the Judge.

Although these editorials were printed over three years ago, it is never too late to vindicate. As the Act still stands, the Judge’s comments that, "Those who believe that our freedoms are guaranteed and cannot be legislated away by Congress remain committed to the repeal – not the renewal – of this overreaching legislation," are particularly relevant.

Napolitano attacks the Act on the basis that:

The Constitution prohibits invasions of privacy by the government by denying it the power to engage in unreasonable searches and seizures absent a warrant issued upon probable cause. Prior to Sept. 11, 2001, we could actually enjoy that right. But in October 2001, the Patriot Act changed all this. In addition to other violations of the Constitution which it purports to sanction, the Act authorizes intelligence agencies to give what they obtain without probable cause to prosecutors; and it authorizes prosecutors to use the information thus received in ordinary criminal prosecutions. Even worse, the custodians of the records are now prohibited from telling you that your records were sought or surrendered.

How does Ponnuru respond?

First he begins by complaining that the Judge’s op-ed was "less [sic] than 800 words." Fine. Let’s accept this childish criterion of determining philosophical truth. Ponnuru’s response, excluding Napolitano’s own words, numbers only 409 words. Maybe Ponnuru is just accustomed to the vacuous bloviating of his friends at the National Review and cannot understand pith.

Ponnuru’s great literary criticism notwithstanding, he offers four arguments against Napolitano.

1) In responding to Napolitano’s claim that the Act violates the Forth Amendment’s guarantee against issuing warrants "but upon probable cause," Ponnuru says that, "It's true that the Foreign Intelligence Surveillance Act (which Patriot modified) does not require a showing of probable cause of a crime." But it’s okay because, "…it does require a showing of probable cause that the target is a foreign power, terrorist group, or agent of one." So violating the Constitution is fine because, don’t worry, the federal government, having unlimited power to determine who terrorists are, will only pick bad guys. Allowing the government to decide who the criminals are before any crimes have been committed, as Murray Rothbard notes, "…provides an open sesame for unlimited tyranny. Anyone might be adjudged to be capable of or likely to commit a crime someday, and therefore on such grounds anyone may legitimately be locked up – not for a crime, but because someone thinks he might commit one. This sort of thinking justifies not only incarceration, but permanent incarceration, of anyone under suspicion."

2) Next, Ponnuru objects to Napolitano’s "irrelevant" point about the government’s expansion of the definition of "financial institution." Napolitano quibbled that by calling Post Offices, newsstands, and lawyers "financial institutions," the government would have the power to read our mail, violate attorney-client privilege, and find out what we are reading without any probable cause. What a pedantic man! What’s next, implying that private citizens are not financial institutions?

3) Ponnuru concedes that maybe, "The tools Congress gave to intelligence agencies are only constitutional when used just for intelligence purposes," but it will take more than "Napolitano's say-so to establish the point." It will apparently take more than the Constitution to establish the point as well. Ponnuru wants three federal judges of the FISA Courts to determine what the role of the government should be. Who better to judge the federal government than the federal government! The Constitution is meaningless if we allow judges, congressmen, and the president to undermine the document whenever they see fit. This point is reminiscent of Andrew Jackson’s oft-quoted retort to the Supreme Court, "John Marshall has made his decision, now let him enforce it!"

The Constitution may be the law, but Ponnuru points out, if the government doesn’t want to enforce it, then what meaning does it have?

4) But this one is the best. Ponnuru apparently missed the lesson that, "…without some demonstrable evidence of some personal criminal behavior, the Constitution declares that our personal lives are none of the federal government's business." He says that he never learned that tidbit in his constitutional law classes.

It would seem then that reading the Constitution did not figure prominently into Ponnuru’s class syllabus. The Fourth Amendment clearly states that, "…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." So, either Ponnuru is being disingenuous or his class was really on The Constitution of the USSR.

June 22, 2007

Max Raskin [send him mail] goes to high school in New Jersey.

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