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219 of 227 people found the following review helpful:
4.0 out of 5 stars
The Theory and Practice of Tyranny, December 1, 2004
Many authors have produced compendia of modern legalized atrocities but Judge Andrew P. Napolitano's "Constitutional Chaos" is much more than a list of complaints, it shows the philosophy behind the growth of tyranny.
The Theory:
The judge begins by describing the two competing legal theories of individual rights. The first asserts that man's rights are inherent within man's nature which, in Napolitano's view, comes from God. Rights are not an arbitrary gift from the state to be withdrawn at the caprice of the rulers but are objective requirements for human beings if they are to live to their full potential. Legislated laws are subordinate to rights and can only be justified in terms of man's nature, hence the name "Natural Law". Man-made laws are attempts to codify the natural law and laws that are inconsistent with natural law may rightfully be struck down by judges.
The second theory holds that rights are creations of the state and are no more natural than speed limits or bans on pornography. Rights are simply expedient grants of free action conferred upon individuals by a government representing a democratic majority. Rights may be increased, decreased, revised or removed at any time for any reason. All laws that are democratically passed are, ipso facto, proper laws and no law may be challenged on any but procedural grounds. This theory goes by the name "Legal Positivism".
Napolitano is, in his own words, a born-again individualist who is firmly in the first camp. While this puts him in a tradition leading from ancient Greece through to Thomas Aquinas and on to the Founding Fathers it also places him outside the mainstream of modern legal thought. His "outsider" viewpoint did not deveop despite his years within the legal system but because of them.
The Practice:
On a daily basis Napolitano sat in his courtroom as police officers committed perjury, produced fake evidence and entrapped suspects into committing crimes that they would never have even thought of were it not for the police. He saw prosecutors bribe witnesses, lie to suspects to trick them into confessing and use material witness warrants as licenses to kidnap suspects and hold them indefinitely.
All in all what Napolitano saw was America's government breaking its own laws in the attempt to enforce the law and the justification was that rights were not inalienable but merely gifts from the state and hence, could be ignored by the agents of the state in the performance of their duties.
The author is not content to show abuse in the simple non-political cases but goes on to far more controversial topics. In a completely non-partisan way he attacks John Ashcroft for shredding the Fourth and Fifth Amendments with the same gusto that he displays while excoriating Janet Reno for the Waco slaughter and clearly demonstrating that both attorneys general hold individual rights in contempt.
Napolitano's even handedness coupled with his stark indictment of modern legal philosophy will win him few friends among the government elite and will probably sentence his book to abysmal reviews and low initial sales. Don't believe the political hacks from both parties who will attack "Constitutional Chaos", this book is the most important one on the state of American liberty to appear in many, many years.
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36 of 37 people found the following review helpful:
5.0 out of 5 stars
A must read!, October 14, 2005
This is a very well-written and insightful book that will shock many people who are unaware of the government's own blatant and flagrant abuses of the law. This recent interview with Judge Napolitano gives a good idea of what you will find in this bok.
Pittsburgh Tribune Review
October 8, 2005 Saturday
LENGTH: 1725 words
HEADLINE: Freedom, 'the default position'
BYLINE: Bill Steigerwald
BODY:
Judge Andrew Napolitano, who appears as a legal analyst on more Fox News Channels shows than anyone can count, is a judge no more. But before he became the most steadfast defender of civil liberties on TV, Napolitano was a life-tenured Superior Court judge in New Jersey who saw the serial abuse of government power every day in his courtroom.
His 2004 book, "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws," details those abuses. With cover-blurbs from both Rush Limbaugh and Nat Hentoff, it also explains his political journey from a super-hawkish Richard Nixon supporter during his undergraduate days at Princeton University in the late 1960s to "a born-again individualist" who says the Patriot Act is "the most abominable assault on human liberty by the Congress since the Alien and Sedition Acts of 1798."
Napolitano, a regular or "The Big Story with John Gibson" and "The O'Reilly Factor," calls himself "a small-government Barry Goldwater Republican who believes in maximum individual liberty." When I talked to him by phone from his offices in New York on Oct. 5, he was still underwhelmed by President Bush's nomination of Harriet Miers to the Supreme Court.
Q: Will Miers hurt or help the health of the Constitution?
A: That's a great question. I am what people refer to as an "originalist," meaning I believe the Constitution means the same thing today as the day it was written. In fact, the whole purpose of a written constitution is to prevent it from changing as attitudes and majorities change. I don't believe that Ms. Miers shares that view. If she shares the view of the big-government conservative Republicans, which basically is Congress can do whatever it wants, then the health of the Constitution will be impaired by her selection.
On the other hand, if she shares the view that the Constitution means what it says, that Congress cannot exceed the 18 specific, enumerated, delegated powers given to it in the Constitution, and that guaranteed rights are simply that - guarantees - then the health of the Constitution will be enhanced by her selection. But because she is the stealth candidate, it might be 10 years before we really know how she has affected the interpretation of the Constitution!
Q: What is the sound-bite synopsis of your book "Constitutional Chaos"?
A: You and I are having a conversation, Bill, and there's no judge, no jury, no courtroom, no stenographer. It is inconceivable that either one of us would go to jail because of what one of us says to another. Martha Stewart was having a conversation with an FBI agent. The FBI agent had a lawyer and she had a lawyer, but there was no judge, no jury, no courtroom, no stenographer. During the course of that conversation, the FBI agent lied to her and she lied to the FBI agent. Somehow he stayed an FBI agent and she went to jail.
What kind of a government prosecutes its citizens for committing a crime which its own agents have themselves committed? One of the reasons I wrote this book, is because in this era of the war on terror, when more and more Americans are having contact with their government, people need to know what their rights are; and people need to know what the government can get away with; and people need to know what the government will do when it wants to get you. Martha Stewart is an unfortunate example of that.
Q: What's the most important message of your book?
A: That rights are not guaranteed, even though the Constitution says they are. That government will labor mightily to make holes in the Constitution to avoid and evade it. And that a government that breaks its own laws in the act of prosecuting people is not your friend. It doesn't have a happy ending, this book. It's filled with horror stories!
I believe in the natural law, which is that our rights come from our humanity - they don't come from government - and our humanity comes from God. So we have the right to speak freely, to think freely, to travel and to associate -- whether or not it's written down and whether or not the government chooses to protect it, because those are natural rights that no government in a popular democracy can take away.
From that it follows that because the government has to respect those rights, the government itself can't violate them, thus it can't violate its own laws. But the government does break its own laws every day and this book is a catalogue of horror stories in which that occurs.
Q: You've described yourself as "a born-again individualist." What's that mean?
A: That means because individuals have immortal souls and the state does not, the individual is greater than the state. That means individual rights are guaranteed and can not be taken away by the legislative or executive branch, but only by a jury after an individual has been convicted of a crime. That also means to means that that government is best that governs least. That the Constitution means what it says.
But the default position is freedom. We are born in the state of freedom. Our natural yearnings and urgings are for freedom. It's natural and integral to all of us. Government is the negation of freedom. Therefore, government must be minimal, minimum, precise and certain. Not a government that thinks it can tax and regulate any aspect of our lives.
Q: Why aren't you running for president on the Libertarian Party?
A: Who would vote for me?!
Q: How did you come by these "radical" ideas?
A: After about a year and a half on the bench of trying criminal cases, I began to see that the Constitution does not mean what it says to the government. And that every single government lawyer who came before me, whether it was jaywalking or murder and everything in between, seemed to be spending all their time justifying ways around the Constitution, trying to pull the wool over my eyes, and claim that the things that the police did that were so obviously and patently illegal and unconstitutional were in fact condoned by higher courts.
I began to look at government not as the protector and preserver of the constitution, but only as advancing the careers of those in the government. Everyone who works in the government, from the president to a janitor, from the governor to a school teacher, takes the same oath: it's to preserve the Constitution and the rights guaranteed in it. It's not for victory in the courtroom. It's not for convicting the bad guys. It's for preserving the Constitution. I just did not see this in the hundreds, probably thousands of government lawyers that appeared me. It actually caused me to revisit some of the verities that I had accepted since I was a child.
Q: Such as?
A: Respect for authority. I now think all authority - I'm not talking about my bosses at Fox. I love them dearly. I'm talking about governmental authority - should be challenged, should be questioned. Because government is the negation of freedom, when it does anything, it shouldn't be presumed valid. It should be presumed invalid. It should have to justify its taking away of freedom in a constitutional context, rather than the challenger having to prove that its behavior is unconstitutional.
Q: Any simple or obvious things we must do to return to constitutional, limited government - or is it hopeless?
A: I think the present environment is hopeless, because of the sway over Republican members of Congress that the White House has. Can you imagine if a Democrat had proposed legislation that allowed the FBI to break into your house when you're at a basketball game on a Friday night and steal your checkbook and plant a bug underneath your toilet and your kitchen table and you'll never know that the FBI did it? That would allow the FBI to go to your lawyer, your banker, your doctor, your pharmacist, and demand your records without a search warrant? That would allow the FBI to go to a post office and read your mail without a search warrant without you knowing about it? If a Democrat had proposed that, the Republicans in Congress would have railed against it and opposed it to the skies. But yet the Republicans in this Congress go along with it, merely because a Republican president proposes it. I'm speaking, of course, of the Patriot Act, which is the most abominable assault on human liberty by the Congress since the Alien and Sedition Acts of 1798.
Q: Why have we been so willing as a people to give away out freedoms?
A: Historically, we have always accepted curtailments of other people's freedom during wartime. During the Civil War Abraham Lincoln, of course, suspended the writ of habeas corpus and locked up newspaper editors and a Republican member of Congress. The public accepted it, because they didn't think it was they who would be locked up. During World War I, Attorney General A. Mitchell Palmer in the Palmer Raids locked up over 1,600 Eastern European Jews from Baltimore to Boston. They were never charged with crimes. They never saw a judge. They never saw a jury. They never saw a courtroom. They were called anarchists.
During World War, not FDR - he didn't have the courage to do it himself - had an unknown general in California lock up 110,000 Japanese Americans - not Japanese, Japanese-Americans -- because of his racist views that they could not be trusted to enjoy the liberty that the rest of us had. They were, of course, as American as he was.
During the present war on terror, about 875 Arab-American males have disappeared from our streets. I mean literally disappeared. There is no docket. There is no record of what happened to them in the courtroom. The dockets have been sealed and the good members of the press have been denied access to the records of what happened to these people.
In 1988, a Republican president, Ronald Reagan, and a Democrat Congress enacted the Civil Liberties Act of 1988, which condemned arresting people without trial; which condemned incarcerating people on the basis of their race, ethnicity or religion; which compensated those still living who had been incarcerated in World War I or World War II a measly $20,000 a head; and which proclaimed that this would never happen again in the American system of government.
But guess what? It has happened again. We never voluntarily give up our own freedoms, but we accept it when we have the not-in-my-backyard-attitude that it is going to happen to someone else.
LOAD-DATE: October 8, 2005
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81 of 91 people found the following review helpful:
5.0 out of 5 stars
Fair & Balanced Constitutional Analysis Yet Scary, December 23, 2004
Judge Napolitano is a regular contributor on FoxNews, and can be relied upon as one who truly strives to be fair and balanced. In this book, he seeks to do that by analyzing how the Constitution is fairing in recent judicial times. His judgment is that it is chaos.
He believes in natural law basis which then gives inalienable rights, that is rights that cannot be overturned or suspended for the sake of majority vote. He emphasizes at the end that we are a republic, not a democracy just so that the majority cannot take away individual rights. He sees this happening in many areas of our judicial system: right to bear arms, free speech, bribery of witnesses, breaking law to enforce, etc. In these, he provides examples, not just theory. Those interested might check out John Warwick Montgomery's book: Law Above the Law.
He then takes on the current administration for their suspending rights due to terrorism prevention. This is only area the Judge makes which does not have my full support. There must be more(hopefully so) to the story than we know. Yet, that too is scary part because can the government hide behind national security interests and strip ordinary citizens? Napolitano makes a strong point here: "We are a nation of laws, not men, and no president is president forever."
This will truly get one thinking. His chapter on "What We Can Do?" is enlightening.
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