[A Nation of Sheep. By Andrew P. Napolitano. Thomas Nelson, 2007. Xiii + 240 pages.]
Judge Napolitano has organized his excellent book around a central metaphor. He contrasts sheep, who follow their shepherd with unquestioning devotion, and wolves, who are alert to protect themselves:
There are two kinds of people who stand out in the United States today: sheep and wolves. Sheep stay in their herd and follow their shepherd without questioning where he is leading them. Sheep trust that the shepherd looks out for their safety… Wolves, on the other hand, do not aimlessly follow a shepherd… Wolves question the shepherd and act in a way that forces the shepherd also to question his decisions. Wolves challenge government regulations, reject government assistance, and demand that the government recognize and protect their natural rights. They are rugged individualists (p. 10).
America, Napolitano thinks, consists largely of sheep: we acquiesce in gross violations of our civil liberties, including but by no means confined to, those inflicted on us by the Bush administration, in the course of its "War on Terror." Too often, even those concerned about the current violations of civil liberties will think in this way.
True enough, the Patriot Act gives the government the power to pry into our correspondence, telephone calls, and personal records; and if I were unfortunate enough to be suspected of being an "enemy combatant," I might suffer a dire fate indeed. Why, though, should I care about that? The Administration is concerned only with blocking terrorists. There is only the remotest chance any of these civil liberties violations will have any direct effect on me.
Napolitano makes clear that this is an unduly narrow way to view matters, and not only because of the familiar argument that a government that targets one group may later target others as well. ("First they came for the…, etc.") Quite, the contrary, violations of rights affect the ordinary person as well.
As a prime example, commuters who enter the New York subway must submit to random searches of their bags.
The New York Police Department, along with many other police departments across the country, now conducts random bag searches in the subway, without suspicion or warrant, in order to prevent terrorist attacks. These random searches clearly violate the Fourth Amendment, which is meant to protect all persons from warrantless searches and seizures. If you are unlucky enough to be selected "randomly," the officers will stop you as you hurry to catch your morning train. As the doors slide closed on the platform below and your train departs, you stand helplessly as the bored cops search your bag. (p. 14)
A federal appeals judge ruled that these searches were constitutional.
In August 2006, Judge Chester Straub of the United States Court of Appeals for the Second Circuit ruled that the NYPD acted within the law because the subway bag searches fell within the "special needs exception" to the Fourth Amendment due to imminent terrorist threats. (p. 15)
Napolitano mordantly comments, "There is no 'special needs' exception in the Fourth Amendment. The court simply made it up" (p. 15).
Napolitano's point is expressed with characteristic force, but I wish that he had addressed in this connection an important issue. Does the Fourth Amendment apply to the states? The claim that it does rests on the "incorporation" doctrine, i.e., the view that the 14th Amendment makes the states subject to the Bill of Rights.
Critics of incorporation such as Raoul Berger have persuasively argued that the doctrine has scant basis; additionally, it strikes at the states as independent sources of authority to the federal government. Is it not likely that more is lost to individual liberty by the increased subordination of the states to federal courts than is gained by decisions that on occasion strike down bad state laws?
The same issue applies to what Napolitano says about the Kelo decision. He remarks
The Fifth Amendment to the Constitution provides that the government can seize private property for public use, as long as it fairly compensates the owner… Perhaps the most disturbing aspect of the case is that the City [of New London, Connecticut] seized property from one private citizen and sold it to another. There was no public use. (p. 137, emphasis in original)
Of course, the city grossly violated property rights. But does the 5th Amendment apply to the states? It would be most valuable to have Napolitano's reflections on this topic.
All airline travelers will have encountered another way in which the Bush administration has interfered with our right to privacy. But, faced with silly demands that, e.g., we remove our shoes for inspection before our federal masters permit us to board, we act as sheep. "But how does confiscating water bottles, snow globes, and 'toy transformer robots' while waving deadly weapons and diseases through the gates, protect our security?" (p. 123). We do not protest but meekly do as we are told.
The measures that I have so far mentioned form part of the "War on Terror," but not all violations of our right to privacy have this battle as their ostensible justification. In a section that will be of interest to all drivers, Napolitano indicts the use of cameras to check speeders. Relying on these cameras denies due process to the accused:
The tickets are practically indisputable, since the images of the vehicle are not close enough to capture the driver of the vehicle. If the license plate recorded is registered to you, you're guilty. Period. These cameras are so profitable that in Britain they are referred to as "yellow vultures" and are the most lucrative cameras in the country. (p. 118)
Napolitano notes that using these cameras increases accidents, since drivers speed up at intersections in an effort to avoid detection; nevertheless, the cameras are increasingly part of the local scene in various sections of America. Again, people act as sheep and fail adequately to protest.
Those who dismiss the measures just described as mere annoyances and, reverting to a style of argument mentioned earlier, ask what the War on Terror has to do with them, should be careful. They may find that the draconian laws they imagined could not affect them hit very close to home:
If you're a member of an activist organization or have ever blogged about how betrayed you feel by your government, or how you really wish they would end this futile war and bring your kid home from Iraq, your name might be on the terrorist watch list along with thousands of other innocent people. Your phone might be tapped, your computer might be monitored, and thousands of surveillance cameras may be focused on you as you trip over that crack in the sidewalk. Today more than ever, Big Brother may be watching. (p. 66)
If he is watching, then, Napolitano reminds us, the Patriot Act allows him to enlist involuntarily the services of members of the public to assist in spying. Further, a citizen thus drafted into service is forbidden, under criminal penalties, to disclose that he has received a National Security Letter.
The Patriot Act places a gag order on any person served with a self-written search warrant … for information, barring them from disclosing that the FBI has either sought or obtained information from them. If a town librarian tells a neighbor … that the government has taken her Internet browsing records, the innocent librarian can end up in a federal prison for five years because of her truthful speech." (pp. 69–70)
Is this not an outrageous interference with our right of free speech?
Assaults on liberty, today as in the past, are supported on the grounds that security must be protected. But the defenders of these measures fail to show that they in any way do improve our security. In what way, e.g., did the internment of Japanese Americans during World War II aid the American war effort? Napolitano remarks that it took more than thirty years for the American government to apologize for this outrageous policy. One wonders whether thirty years from now the government will issue a new apology for the manifold invidious actions of the Bush administration. We must thank Judge Napolitano for alerting us to our peril in this excellent book.