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Constitutional Chaos in America

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09/26/2019Judge Andrew P. Napolitano

JEFF DEIST: Judge Napolitano, it’s great to speak with you.

Some people, even your fans, think you’ve been too hard on Trump on the issue of alleged collusion by his campaign surrounding the 2016 election. A lot of libertarians don’t think collusion or conspiracy ought to be crimes at all.

JUDGE ANDREW NAPOLITANO: Collusion is Rudy Giuliani’s word, which he carefully insinuated into the dialogue. The crime for which the president’s campaign was investigated was conspiracy. Was there an agreement between the Russians and the president’s campaign to violate federal election law by receiving something of value from the Russians? I join with the condemnation of these statutes, but the analysis to which you refer is based upon the law that exists, not the law I wish it to be. If it were up to me, there would be no such thing as conspiracy crimes because they are thought crimes and word crimes. But, at the present time in our history and in fact, for all of our history, regrettably, an agreement to commit a felony, agreement by two or more people or two or more entities to commit a felony and a step in furtherance of that agreement, constitutes an independent crime. That’s what the president was investigated for. The president has claimed Bob Mueller didn’t find any evidence of a conspiracy. On the contrary, he found 127 phone calls in 15 months between Russian agents and the Trump campaign, and conversations about when dirt about Hillary Clinton would come out. That is surely enough to qualify under the statute for conspiracy, but Mueller felt he could not prove the case beyond a reasonable doubt. In the world of freedom, where you and I and people reading this live, conspiracy is a phony crime. For 600 years of Anglo-American jurisprudence, all accepted definitions of crime contained an element of harm. Today, crime is whatever the government says it is.

JD: Do you think he will be indicted and prosecuted after he leaves office?

JAN: Not for the conspiracy, but there’s certainly a chance he could be indicted for obstruction of justice, which is taking a material step to interfere with a criminal investigation for a corrupt purpose. If a lawyer files a motion before a federal judge to get the FBI off the lawyer’s client’s back, that is interfering with the FBI investigation, but it’s not for a corrupt purpose. It’s to protect the constitutional and fundamental liberties of the client. But if the president of the United States — as Bill Clinton is alleged to have done and Richard Nixon is alleged to have done — tells his underlings to lie to federal investigators or to grand juries, now that is classic obstruction of justice. Again, that, too, is a crime which in the libertarian world wouldn’t exist because it’s a thought crime and it’s a word crime. These are clearly crimes for which people are prosecuted in America under the law as it is, not as I might want it to be. The president qualifies as a potential defendant and likely defendant.

JD: In the wake of two recent horrific mass shootings, you’ve remained outspoken in your defense of Second Amendment rights. Do you think the Heller decision, the notion of gun rights as individual rights, and the larger idea that citizens should have access to the same weapons as government, are in danger? Does the push for gun control worry you?

JAN: It worries me terribly. There’s a poem by Herman Melville written right after Lincoln was killed. “Beware the people weeping when they bare the iron hand.” That’s exactly what’s happening now. People are weeping because of the innocent human lives that were crushed by madmen and that weeping may manifest itself in the confiscation of guns. Can you imagine the police coming to your house and saying, “that gun which you lawfully own and safely use, you must give it to us. Somebody else had a similar one, also lawfully owned it, but they didn’t safely use it.” That’s absurd. There’s no place for that in American history. The Heller opinion you mention (District of Columbia v. Heller, 2008), with Justice Scalia writing for the majority, characterizes the right to keep and bear arms as a pre-political individual right. You and I, and people reading this, would call that a fundamental or natural right. Whatever you call it, it is the highest level of protective right known to American law. It’s akin to protections for speech and press and travel. The government constitutionally cannot take fundamental rights away because of the harmful actions of others. That is what the Nazis did, punishing innocents.

JD: Gun control advocates will argue there is a compelling state interest in avoiding these kinds of mass shootings.

JAN: I’m sure that’s what their argument will be. They have to find a less restrictive way to address the compelling state interest than confiscating guns from people who lawfully own them and safely use them. For example, it would be a lot safer for all of us if the citizenry were armed and trained because police cannot respond immediately. These creeps would either think twice or be blown away as soon as they started their slaughter — by the guy standing next to them.

JD: A more narrowly tailored approach to gun crime might be “red flag” laws, which you’ve also criticized recently.

JAN: Red flag laws are profoundly unconstitutional. They permit the interference with a fundamental right, the right to keep and bear arms, on the basis of what some judge decides a person might do, M-I-G-H-T in caps. That “might-do” standard is a profound violation of the presumption of innocence and the due process requirement of proving demonstrable fault. The presumption of innocence requires that when government wants to take away liberty, it must prove its case beyond a reasonable doubt. How can you possibly prove beyond a reasonable doubt that something MIGHT happen? It’s an impossible thing to prove. And in terms of due process, the Constitution is very clear. Government has to prove you committed a crime, not that you might commit a crime. When the old Soviet Union finally revealed it used psychiatric testimony against people the government hated — to prove what these people might do, and incarcerate them — Ronald Reagan led the charge against this. Now we have a president who wants to do this. This is a perversion of the protection of our liberties. If the government can take away Second Amendment liberties because it can show a judge how someone might abuse those liberties, then no liberty is safe: speech or religion or travel or privacy or due process. No liberty will be safe if that standard becomes the law.

JD: Speaking of due process, the American Bar Association wants to redefine the notion of consent as it relates to criminal sexual assault. Its proposal puts the onus on defense lawyers to prove consent was ongoing throughout a sexual encounter. This approach borrows a very broad concept of consent from certain university administrative policies and applies it to criminal law.

JAN: That would violate the presumption of innocence. The presumption of innocence has many prongs to it, one of which is that the government prove every element of the crime beyond a reasonable doubt. The defendant does not have to prove consent. The government has to prove that there was no consent. If they put the burden of proof on the defendant to prove anything, then that profoundly violates longstanding American jurisprudence, which imposes all the burdens in a criminal case on the government and none on the defendant. If I allege in a criminal prosecution against me that I used my weapon in self-defense, I don’t have to prove affirmatively self-defense. The government must affirmatively disprove self-defense beyond a reasonable doubt, before it can get a conviction of me. That’s been the standard in America for 200 years.

JD: Let’s consider the Fourth Amendment, which many people think is in trouble. The Patriot Act, civil asset forfeiture, the 100 mile border search exception zone, NSA spying — it seems like a terrible time for civil libertarians. What are your current thoughts on the Fourth Amendment?

JAN: I think it’s in terrible shape. The 100 mile exception zone is profoundly unconstitutional because it’s judge-created. It’s not in the Fourth Amendment. Most of this began during the drug wars initiated in the Nixon years, when federal judges decided it was better for society to curtail liberties and get drugs off the street than to be faithful to their oaths to uphold the Constitution. There are so many exceptions to the Fourth Amendment in criminal prosecutions that it hardly exists at all. Add the Patriot Act — the so-called Patriot Act — and the USA Freedom Act, which both permit profound violations of the Fourth Amendment on the theory that evidence obtained will be used for intelligence purposes and not for criminal prosecution. Unfortunately, it doesn’t work that way. The same statutes that permit violations — such as listening to every phone call and capturing every keystroke — not only permit but require information obtained by intelligence agencies to be shared with law enforcement. Any judge who accepts this has violated the oath to uphold the Constitution. Privacy, right now, is the least favorite right of the government. It is an individual and pre-political right — meaning fundamental and natural — but hardly any government anywhere in America treats it as such.

JD: Of course the Patriot Act continues to be reauthorized by Congress, when technically all or portions of it could expire under the original statute.

JAN: It’s actually even worse, because they don’t even debate it. They don’t even schedule time for debate. Congressional leadership just says, “well, this is in the category of everything we have to vote for,” and like lemmings they vote for it. Members of Congress are either afraid of what the intelligence community has on them, or they have no concept of the nature and extent of the violation of fundamental liberties the government engages in by following this Act. And the Act itself is really a façade because the NSA doesn’t even follow it. The NSA goes ahead and captures all the intelligence it wants, so much intelligence it doesn’t have time to sift through it. This intelligence overload doesn’t keep us safe. They invade the privacy of anyone they want for any reason they want without telling a judge or even getting one of those facetious FISA warrants. FISA is also a façade, a shield behind which the NSA hides while it profoundly violates the fundamental liberties of everybody in the country. Justice Scalia told me that once the Court itself was being spied on by the NSA. How much worse can you get than that?

JD: What about Big Tech? These companies have access to our data, phone conversations, email, texts, you name it. Are they in bed with the state?

JAN: I think they are in bed with the state. They have either been given immunity or they’ve been threatened or they’ve been paid for their skills. It’s not metadata — it’s actual communications. They don’t have the time to listen to us as we speak or the time to look at our keystrokes as we press them, but they have all of that stored. They can look at it anytime they want. They want us to think it is metadata, but metadata is who, what, when, where, what number, and for how long — but without content. The NSA captures all the content of everything transmitted on any fiber optic cable in the United States, period. How do I know this? The former NSA official who invented some of their practices, the courageous Bill Binney, has stated this hundreds of times in public.

JD: We hear about data swept up indiscriminately by intelligence agencies. Let’s say the NSA has access to a person’s old email archives. Years later that person becomes a suspect in a crime. The email was already sitting there, but now the NSA looks at it. Is that a search?

JAN: That is a search, which can’t be done without a search warrant, but what the government does is what’s called parallel reconstruction. It will find some fictitious way to justify to a judge how it obtained this information. It will never, ever, ever admit in a public courtroom that it captures all the information all the time. Remember the San Bernardino killers, the husband and wife who committed mass murder at a government office? The FBI went nuts trying to get the cell phone passwords each of them used on their cell phones. All they had to do was call the NSA, but the NSA would never admit to having the passwords. So it was necessary to hire Israeli experts to hack the phone and get the information. Both are unconstitutional, but in fact the government already had that information. It just wouldn’t admit it.

JD: You gave a talk a couple of years ago at Mises University on the real meaning of the First Amendment. You were surprisingly upbeat about the relatively robust free speech protections upheld by the current Supreme Court.

JAN: Yes, particularly under the Roberts court. Even horrible things like snuff films (these are horrible films of animals being killed), can be watched as an expression of an idea. It has been the president’s wish to curtail the dark side to the internet, but this is protected speech now. The standard is a 1969 Supreme Court opinion called Brandenburg v. Ohio, in which the Supreme Court ruled that all innocuous speech is absolutely protected — and all speech is innocuous when there is time for more speech to address or challenge it. That’s about as broad a pro-free speech standard as you’re ever going to find. It’s been the law of the land since 1969. The Court has not adhered to this standard as rigorously with child pornography laws. But with that exception the Supreme Court since 1969 has been remarkably aggressive in its protection of the freedom of speech.

JD: Speaking of robust speech, do you agree with the Rothbardian-Blockean conception of defamation? Since you cannot “own” other people’s thoughts or attitudes or opinions about you, you should not be able to sue for injury to your reputation?

JAN: You’re talking about in theory.

JD: I’m talking about in theory.

JAN: I do agree with that. I believe in unbridled free speech and press, but of course, that’s not the law that we have today.

JD: Let’s say an ostensibly private tech company aggressively de-platforms people for political speech. The First Amendment is not implicated, but should we consider tort or estoppel theories as a remedy against this?

JAN: No. I would like to see people stop using one search engine or company and put together another one that does not de-platform people. I would use the free market to address that. I don’t like what Google does to people, but they’re not the government. They’re a bulletin board. They have the right to post on that bulletin board whatever they want. They can choose their customers and they can choose not to deal with certain customers. That’s where the free market comes in. There are obviously barriers to entry, with Google for example. You can’t start a competing service overnight, but if Google mistreats enough people, those people will want an alternative. Where there’s a demand in the free market, if we had one, there should be capital to address that demand.

JD: You’ve probably heard different arguments: by not de-platforming people consistently, uniformly, or transparently, tech companies effectively waive or alter some of their terms of service and thus might be liable under contract theory. Or consider where a user relied on the representation of a neutral platform, put time and energy into building up a following, and suffers harm when the platform is suddenly taken away. This is the estoppel approach.

JAN: I understand that argument. I might make it if I were their lawyer. But in my world, forcing a business to accept somebody as a client is government occupation of private property — and it violates many of our basic principles.

JD: But imagine if someone typed “Mises” or “Rothbard” into Google and no search results show up until the thirtieth page. We could be “disappeared” that easily.

JAN: Yes. Build another search engine.

JD: I want to talk about the Supreme Court itself. After the Kavanaugh debacle, it is abundantly clear — it was already clear — how both sides see the Court as a weapon. It is a political tool, a way to vanquish or bludgeon the other side. Both sides see the stakes as enormously high. Have we crossed the Rubicon when it comes to the Supreme Court and its supposed role?

JAN: Much of the country, including the president, thinks that the Supreme Court is like a legislature. I heard him say it’s important for the Republicans to control the courts. That may be a Freudian slip or it may be ignorance of our system. Yet confirmation battles seem to rage on as if people think that the Supreme Court or the federal judiciary is just another sort of super legislature. It isn’t. We give judges and justices life tenure in return for fidelity to first principles, not fidelity to party. Not all judges and justices have been faithful to first principles, and some of them have been political activists on the bench. One would like to think they would be faithful to first principles and not to the demands of a political party.

JD: A lot of people, myself included, think the Supreme Court’s outsized power comes from a misinterpretation of the Constitution itself. Judicial review is nowhere to be found in the text of Article III, and the Court is merely supreme over lower federal courts. It is not supreme over the other federal branches, or over the states themselves. But most people see Court decisions as the “law of the land.”

JAN: In my world, the Supreme Court and the federal judiciary would not be supreme over the states, other than to prevent states from interfering with fundamental liberties. That’s not the way it is. The Supreme Court is superior to everything. If there were no judicial review the courts would be toothless. The whole purpose of an independent judiciary is to be anti-democratic, to preserve the life, liberty, and property of the minority from incursions by the majority. When the Court properly trumps what the legislature or the executive have done in deference to a right articulated or implied in the Constitution, it literally prevents the tyranny of the majority in order to preserve the liberty of whomever the majority targets. That’s what we want it to do. The idea that the federal Supreme Court could tell the states how they are to operate beyond keeping them respectful of fundamental liberties, that’s pure John Marshall. It hasn’t changed for 200 years. It might take acts of secession to get it to change, but I’m with our dear friend, Tom Woods on that: a state court of last resort is competent to articulate what federal law means in that state and it should be immune from interference by the federal judiciary.

JD: We have to grapple with the awful “living Constitution” idea. We might look at Ruth Bader Ginsburg in any particular case before her and say she has a result in mind, often a political result. So she reverse-engineers her decision, using whatever legal reasoning sounds plausible to justify the result. We think of this as “bad” judicial activism, but you also talk about beneficial “constitutional activism.” What is the distinction?

JAN: Ruth Bader Ginsburg is not the only person who does this. My late great friend Justice Scalia was accused, I think quite properly, of doing the same thing: finding an end result, usually a political result, and then looking for some pseudo-constitutional way to get there. That is judicial activism. Constitutional activism, by contrast, presumes the government is wrong. It presumes that the individual is correct, requires the government to demonstrate its case beyond a reasonable doubt, and requires the government to protect fundamental liberties unless those liberties have been waived by an individual’s conduct. Stated differently, a constitutional activist is a judge who limits government to protecting fundamental liberties. When it does more than that, when it takes property from A and gives it to B, a constitutional activist will stop the government from doing so. That type of judge exists only in theory and on paper, not in reality. This is because judges have all taken an oath to uphold the law, whether they agree with it or not. Often the constitutionality of a law, strictly speaking, is not challenged before the judge. A variety of tools, allegedly derived from the Constitution, prohibit judges from going beyond the “four corners” of the legal challenge in front of them. This prevents judges from willy-nilly striking down whatever they think or know to be is unconstitutional.

JD: The country is divided, and not just politically. We have deep cultural and social schisms, and real disagreement on things like abortion and guns and free speech and climate science. What is the way forward? What do you see as the best approach to improving this nasty climate in America?

JAN: It is education, like what we do at Mises all year around. Trying to make people realize that their rights are integral to their humanity. Government can only interfere with them when it proves to a jury that a person has given up his or her rights by interfering with someone else’s rights. When we explain to people — whether in a basic or advanced way — the case for natural law constitutionalism and Austrian economics, they usually understand it. When we explain the primacy of the individual over the state, the inviolability of natural rights, the reality that only a free market (meaning free from government interference) produces the highest amount of wealth for the greatest number of people, people usually understand it. But none of this is taught in government schools because government schools are not interested in theories that clip the government’s wings.

JD: Give us your quick definition of natural law constitutionalism.

JAN: Natural law teaches that our rights come from our humanity, and that all persons exercising human reason will come to a similar conclusion about the investiture of those rights within us. Not everyone will exercise their rights the same way. Some people will use their freedom to do harm, as opposed to good, but all rational people recognize that these rights come from within us. It is the duty of the federal government under the Ninth Amendment to protect those rights, because the Ninth Amendment prohibits all governments — local, state, and federal — from interfering with or disparaging natural rights. The Ninth Amendment is one of those amendments like the Second and the Tenth that the government doesn’t want to talk about and doesn’t like to rely on. I remind people that when Madison wrote the Ninth Amendment he was going through a transformation from being a big government person to a small government person. Madison wrote the Ninth Amendment to assure us that the government would recognize unarticulated natural rights and it would protect them, although things didn’t end up as Madison wanted. That, in a nutshell, is natural law constitutionalism: the concept of the existence of unarticulated natural rights residing within each human being, for which government has an obligation to protect the existence and exercise of them.

JD: Did the Constitution at least attempt to codify natural law and protect natural rights, or should we view it entirely as a positive law document?

JAN: It’s a positive law document and a triumph of the big government crowd, which kept its powder dry during the Revolution, so to speak. They kept their big government wishes to themselves until after we won the Revolution. The Bill of Rights was added in order to prevent the calling of a second Constitutional Convention, which might have written a new constitution that seriously impaired the power of the central government. But the Constitution itself, with its elastic clauses — which Madison, by the way, claimed are not there — gives powers to government. Madison toward the end of his life sounds like Ron Paul, but not at the Constitutional Convention. He was the same human being, but his thoughts were radically different. The document itself ratified slavery and ratified the slave trade. It permitted the Necessary and Proper Clause to mean needful and helpful, rather than necessary. It gave far too much power to a central government. The person you and I respect a lot, Murray Rothbard, argued that the last time there was freedom in this country was right after the Revolution — before the Constitutional Convention, under the Articles of Confederation. At that time if you didn’t like the tariffs and monopolies on Rhode Island, you could walk to Massachusetts where you might get a different version of them, but you didn’t have a central government making everything uniform.

JD: What would a better, freer judicial and legal system look like? If Judge Andrew Napolitano could create an improved system, would it reflect a preference for common law over positive law?

JAN: I don’t know what it would look like, but I would change some things in the Constitution. I would define “commerce” in the Commerce Clause as the movement of goods over interstate lines between merchants. I would return the word “expressly” into the Tenth Amendment. I would remove the Necessary and Proper Clause and make it very clear that the Constitution limits the federal government only to those powers expressly set forth in it. All other powers not specifically and expressly delegated to the feds reside in the states. Of course the states are no saints; they ran the system of slavery in the United States and absent the Fourteenth Amendment they would trample our natural rights. And there has to be some sort of provision guaranteeing the right to secession, just as we seceded from Great Britain. New Jersey could secede from the Union and my little farming town in northwest New Jersey could secede from New Jersey. The right to secession has to exist. Government has to fear that if it takes too much liberty or too much property, people will resist it and it will go out of business.

JD: I could not agree more, but secession inflames people and brings out faulty arguments.

JAN: There’s basically a right to ignore the government. This fits in with the argument that government’s only lawful role in a free society is to enforce natural rights. Everything else is some sort of redistribution, a socialist redistribution of assets.

JD: Our audience is particularly interested in libertarian ideas and even anarchism. Your book Constitutional Chaos, written in 2004 during the Bush years, depicts a lawless federal government. We worry about citizens behaving badly without rules, but what happens when government itself fails to follow the rules? That seems the bigger threat.

JAN: Government finds ways to protect itself when it violates its own laws. Government makes it very difficult to sue the government. You slip and fall on a lettuce leaf in a supermarket, you can sue the supermarket. But if you slip in the post office, it is very difficult to sue the post office. If you don’t go to the right lawyer who knows what hoops to jump through, you find yourself without any recourse. Why? Because the government has protected itself. The most fiercely prosecuted crimes are those that harm the government’s prerogatives. They’re not property crimes against private individuals. The most fiercely prosecuted crimes interfere with what the government does. Mises is right. Government is essentially the negation of liberty. The whole theory of natural rights is that each individual is sovereign. Each individual has human liberty, and everything the government does, everything from A to Z, is a negation of that liberty. The only legitimate negation of that liberty occurs when government protects natural rights, when it protects A from interfering with the natural rights of B. Then it can interfere with A’s liberty to perpetrate that interference. This is a species of the nonaggression principle. What government is legitimate absent consent? One that enforces the nonaggression principle, or one that enforces natural rights and does no more. And does no more.

JD: Very well said, as always. Thank you.

Note: The views expressed on are not necessarily those of the Mises Institute.

Contact Judge Andrew P. Napolitano

Judge Andrew P. Napolitano was Senior Judicial Analyst at Fox News, former Judge of the Superior Court of New Jersey, and is a graduate of Princeton University and the University of Notre Dame Law School. He has been published in The New York Times, The Wall Street Journal, The Los Angeles Times, and numerous other publications

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Cite This Article

Napolitano, Andrew P., "Constitutional Chaos in America," The Austrian 5, no. 5 (September/October 2019): 4–13.