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Here Comes the Judge From Fox

Andrew Napolitano brings order to Constitutional Chaos.

By 2.16.05

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Constitutional Chaos: What Happens When the Government Breaks Its Own Laws
By Andrew P. Napolitano
(Nelson Current, 234 pages, $26.99)

Beltway pundits tell us the Bush presidency will be remembered for two overarching issues: the Iraq war and Social Security reform. Don't believe it. It is way too early for such predictions. Few people seem to recall that, prior to 9/11, the issue of the day was stem cell research. Before al Qaeda's attack, Bush himself thought his stem cell policy would likely be the most important decision of his presidency.

The political scene can change very rapidly -- so be forewarned that a political earthquake is looming on the horizon. Just watch what happens once the news wires report the resignation of a Supreme Court justice. Virtually all of the attention that is now on Iraq and Social Security will turn to the president's nominee, the confirmation battle in the Senate, and constitutional law.

Several new books on the Constitution and the judiciary are hitting the bookstores in anticipation of the coming political and legal battle. One of these is Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, by Andrew Napolitano. Judge Napolitano is the senior judicial analyst on the Fox News Channel where he does a terrific job of cutting through legal jargon to explain cases and controversies to laypeople. He has now written a primer on constitutional law for a lay audience.

But Napolitano's book is not a disinterested, this-is-how-the-law-has-developed-over-years type of book. As the title suggests, the judge has a definite point of view. His thesis is that the Bill of Rights has been under relentless assault from government officials who have no compunction about breaking the legal charter that they are sworn to uphold. Napolitano believes that this constitutional corruption is rampant, but that most citizens are blissfully ignorant of the problem because they simply assume that their rights are "guaranteed" on the off chance they would ever really need them. To remedy the widespread naivete, Napolitano presents vivid horror stories of government agents running amok in the U.S.A.

EVERYONE KNOWS THAT abuses occur from time to time, but the picture that Napolitano paints is downright depressing. The First Amendment guarantees freedom of speech, but antiabortion activists are hauled into court because of a website that compares abortion-physicians to Nazi war criminals. "The plaintiffs," Napolitano writes, "sued under a federal law prohibiting violence that blocks access to abortion clinics." Just one problem: What is the relationship between that law and the website? How can website content block access to a clinic? Instead of throwing the suit out, the case went to trial and a jury returned a $107 million verdict against the antiabortion group. Now website content has to be written with the threat of ruinous lawsuits in mind. What happened to freedom of thought and freedom of speech?

The Second Amendment guarantees the right to keep and bear arms, but when Ronald Dixon shot a burglar in his home in 2002, New York prosecutors called Dixon a criminal. Instead of honoring Dixon's right to defend himself and his child, the government pressured him to plead guilty to a "disorderly conduct" charge. Napolitano asks, "Who in their right mind would not use a gun under these circumstances to save an innocent, defenseless baby?" Even though the plea bargain meant that Dixon would not have to serve time in jail, the judge argues that Dixon's life should never have been disrupted by the prosecutors "for exercising a natural right, and he should not have had to incur legal expenses." Napolitano's point is that our rights are under attack -- and if we don't guard them, they will slip away for good.

The Fifth Amendment says private property cannot be taken for a "public use" without "just compensation," but Leonard Proh was told that he had to move out of his home because a real estate developer wanted to use his parcel of land for a parking lot. The developer had enough connections with the "town fathers" to have the town invoke its power of eminent domain against Proh. An outrage, to be sure, but the courts intervened, right? "No," reports Napolitano. In fact, a Texas trial judge allowed the developer to demolish Proh's home even though the lawsuit was not yet over! Proh had to move out even as his wife lay in a hospital bed with brain cancer. Five days after their home was leveled, she died.

Napolitano also draws on his own disillusioning experience as a New Jersey Superior Court judge, a position he held for many years before moving into the world of television journalism. When cops took the witness stand and told tall tales about why they stopped individuals on the street or why they pulled cars over, Napolitano was shocked. He writes, "To someone of my blue-collar, lower middle class, Roman Catholic, respect-for-authority background, it was simply inconceivable." The judge recoils in indignation over law enforcement's common rationalization that "winning" the case is what's important -- even if the law must be skirted to secure a conviction.

To those who say, "well, if you don't have anything to hide, you do not have anything to worry about," Napolitano tells the story of Joseph Salvoti. FBI agents were so obsessed with "winning cases" that they passively allowed Salvoti, an innocent man, to wallow in jail for thirty years for a murder that he did not commit. The FBI looked the other way because it wanted to protect its informant. When a congressman confronted one of the agents about the injustice, the agent joked that the story might interest a Hollywood movie producer.

NAPOLITANO HAS EARNED RESPECT from lawyers across the political spectrum because of his nonpartisan approach to legal and constitutional analysis. He has wisely brought the neutrality that everyone expects from a judge to his job as a commentator at the Fox Network and to his book about the Constitution. He calls 'em as he sees 'em. Thus, in some places he criticizes Janet Reno; in other places, John Ashcroft. And it is refreshing to see a judge defend not only the First Amendment, but the Second Amendment as well. Napolitano reminds the reader that we ought not to take a cafeteria approach to our constitutional liberties. Hear, hear.

Napolitano concludes his book by exploding the right-left debate concerning "judicial activism" and "judicial restraint." He writes, "Let's be brutally honest about this: The only judicial activism we condemn is that with which we disagree... When judicial activism merely enforces the Constitution, it is a very good concept." That is an important point. A judge can abuse his post by substituting his opinion for the law, but that abuse can manifest itself in two distinct ways. A judge might invalidate a law passed by the legislature because he disagrees with it -- or he might let an unconstitutional law stand because he disagrees with an unfashionable constitutional principle, such as the right to private property, free speech, or the right to keep and bear arms. A good judge will refrain from both forms of misconduct.

When a vacancy opens up on the Supreme Court, the media will focus on the Roe v. Wade precedent, but Judge Napolitano recognizes that a broader perspective is necessary to understand what is really at stake. If judges fail in their duty to defend the Bill of Rights, government officials will run amok, constitutional corruption will flourish, and the land of the free will slide into chaos. Thus, what we really need is a clear-eyed defender of the Constitution, someone who is willing to defend a constitutional principle even when it is unpopular to do so.

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