Constitutional Chaos

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

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