Judge Andrew Napolitano on Chaotic Courts and Unconstitutional Justice in the United States

The Daily Bell is pleased to present an exclusive interview with Judge Andrew P. Napolitano.

Introduction: Judge Andrew P. Napolitano joined FOX News Channel (FNC) in January 1998 and currently serves as the senior judicial analyst. He provides legal analysis on both FNC and FOX Business Network (FBN). He is also a fill in co-host for "FOX & Friends" regularly and co-hosts FOX News Radio's Brian and The Judge show daily and is host of FreedomWatch on Foxnews.com. Judge Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. While on the bench from 1987 to 1995, Judge Napolitano tried more than 150 jury trials and sat in all parts of the Superior Court – criminal, civil, equity and family. He has handled thousands of sentencings, motions, hearings and divorces. For 11 years, he served as an adjunct professor of constitutional law at Seton Hall Law School, where he provided instruction in constitutional law and jurisprudence. Judge Napolitano returned to private law practice in 1995 and began television broadcasting in the same year. Judge Napolitano has written four books: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws; a New York Times bestseller, The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land; A Nation of Sheep.; and his most recent book is another New York Times bestseller, Lies the Government Told You: Myth, Power and Deception in American History.

Daily Bell: Thanks for visiting with us. Tell us a little bit about your background, where you grew up and how you became interested in being a judge.

Judge Napolitano: I was born in Newark NJ, attended public schools, spent my sophomore year in high school as a page in the U.S. House of representatives and attended the private school for pages in the Library of Congress. I'm a graduate of Princeton University and the University of Notre Dame Law School. My academic interest in the law drew me away from private practice toward the judiciary. I received my initial appointment from Governor Tom Kane and my lifetime appointment from Governor Christine Todd Whitman.

Daily Bell: How did you make the leap to FOX News?

Judge Napolitano: At the time that I left the bench, something that rarely occurs during a lifetime appointment – and with the permission of the Chief Justice – I held a press conference in which I blasted judicial salaries. I also blasted the inability of judges to supplement their income by doing teaching and writing. One of the people that happily read the interview was the then President of CNBC, who called me up and said, "Now we're about to cover this crazy trial in California and I thought about putting a judge on TV to second guess this judge." Then he asked me "Maybe you have heard of him, his name is Lance Ido?" Of course it was the OJ Simpson trial and I ended up covering it four-days a week for 13 months. The President of CNBC would go on to become the founder of FOX; it was Roger Ailes. He was the one, of course, who brought me over.

Daily Bell: You are more libertarian than conservative and obviously a friend of Ron Paul's. When did you get to know Ron Paul and learn about the Austrian, free-market school?

Judge Napolitano: I got to know Ron Paul over the past four or five years when after a couple of interviews on air, he invited me to spend a little time with him and some other Congressman in DC and discuss the Constitution over dinner. My attraction to the Austrian view of economics was generated early on in my college years when I rebelled against the Keynesian Economics being taught at Princeton and just about everywhere else. I couldn't put an exact date on either of these events for you but one is about 5 years ago and the other is about 35 years ago.

Daily Bell: Would you classify yourself as an Austrian?

Judge Napolitano: I would classify myself as a person who believes in the Austrian School of Economics – absolutely. The books that have influenced me the most in my life, I would list as: Orthodoxy, by G.K. Chesterton, The Conscience of a Conservative by Barry Goldwater and The Road to Serfdom by F.A. Hayek

Daily Bell: You were the youngest life-tenured Superior Court judge in the history of the State of New Jersey. How did your views evolve from this point forward to where you are today?

Judge Napolitano: Well, being the youngest was a coincidence of biology, I was appointed very young because Tom Kane, Governor Kane at the time, was interested in very young people who wanted to make the judiciary a life-time career. The New Jersey constitution requires that you practice law for ten years before you are eligible for the full-time judiciary; I began practicing law at age 25 and was appointed to the bench at age 36, so that is about as early as you could possibly do it. Then I wrote a book about Constitutional Chaos, What happens when the government breaks its own laws. I have always been on the Libertarian side of things but being a judge in a criminal court was enough to lock the door and throw away the key, so to speak. You spend so much of your time observing the government's efforts to evade, avoid and otherwise dodge the Constitution. And if you believe the Constitution means what ii says, and you take your oath seriously, then you generally become scandalized at the things done by both the police and prosecutors. I described this intellectual odyssey in this book.

Daily Bell: What is justice in your opinion – having sat on the bench?

Judge Napolitano: I don't think I can answer that in a simple paragraph. But justice is the enforcement of the fair response to human behavior consistent with natural law and consistent with the rule of law. So that means that you have to accept that the Declaration of Independence is not just a Jeffersonian musing, but is fundamental to American values. Our rights come from our humanity, which is a gift from God; they don't come from the government, so they can't be taken away by the government. You have to accept the role of government as an arbiter with respect to the infringement of those rights whether by an executive or legislative branch, or whether by a private person. Really there is no formula other than recognizing natural rights, accepting the fundamental law of the land, being fair and being brutally honest and having no interest in the outcome.

Daily Bell: Does President Barack Obama understand the Constitution in your opinion?

Judge Napolitano: I don't think so, unless the Barack Obama that we witness in the White House is putting on an act. I mean to him the Constitution is no impediment to the exercise of judicial power. I have to modify this by saying rarely have we had a President who understood the Constitution. Grover Cleveland understood the Constitution, Thomas Jefferson for the most part of it understood the Constitution; Andrew Jackson partially understood the Constitution but very few others have.   

Daily Bell: Are sentences for white-collar securities crime, especially insider trading, adequate and just?

Judge Napolitano: Well for the most part they are far too harsh because they are an effort by the government to regulate the free market by a weird and bizarre and expansive definition of who or what an insider is. Basically the government should do little more than preserve freedom, which means make it a crime to commit fraud on someone. It shouldn't be a crime to take advantage of your knowledge of the market place in order to make money as long as the playing field is level.

Daily Bell: You served as an adjunct professor of Constitutional law at Seton Hall Law School, where you provided instruction and jurisprudence. Is the law constitutional these days? What does that mean?

Judge Napolitano: Yes, I did that for 11 years. You mean are laws written to the Constitution? The answer is no. Most members of Congress couldn't care less what the Constitution says. Even though they have taken an oath to uphold it, preserve it, protect it and defend it, which was the same oath I took when I became a judge. I was interviewing a Congressman from South Carolina, Jim Clyburn, who's the number three ranking Democrat in the house, and I asked him quite simply and plainly where in the Constitution is the federal government authorized to manage health care? He told me, "Judge, most of what we do down here, (referring to Washington) is not authorized by the Constitution." The torturing and twisting of the plain language of the Constitution in order to permit the expansion of the federal powers has resulted in the loss of liberty and freedom of choice.

Daily Bell: What is the state of constitutional scholarship in the United States?

Judge Napolitano: Well constitutional scholarship is all over the place. I mean there are those who write scholarly works of art in order to justify the government's exercise of power – not granted by the Constitution – and there are those who write scholarly works in order to keep the government in line.

Daily Bell: Why don't lawyers realize how far they have strayed from constitutional principles?

Judge Napolitano: Well because most of them don't deal with the Constitution on a daily basis. Unless you are a prosecutor or a judge or a criminal defense lawyer or involved in public advocacy – like the ACLU or the Institute for Justice or one of these think tanks devoted to protecting freedom and property – you generally don't deal with the Constitution, even though this is one of the most fundamental texts in any American law school. And even though proficiency on this area of law is required by every American bar examination, it is a subject matter that lawyers lose track of almost immediately after they take the bar exam. Most lawyers deal with issues that do not effect the government and constitutional law.

Daily Bell: Tell us about your book, Lies the Government Told You: Myth, Power, and Deception in American History.

Judge Napolitano: It is a rollicking tour from 1776 to 2008 about the classic lies the government has perpetrated on the people and the political, legal and moral effect of accepting those lies. I argue that the dirty, little secret of American history is that the Constitution is rarely enforced and the government gets away with its violation of the Constitution in the most explicit ways. It basically seeks to point out government's myth-making when it comes to such constitutional points as, "all men are created equal," or "Congress shall make no law abridging a freedom of speech," or "all persons shall be secure in their property, houses, possessions." I argue that FDR caused Pearl Harbor, that Lyndon Johnson created out of thin air the Gulf of Tonkin, that George Bush knew that there were no weapons of mass destruction in Iraq and was in fact authorizing his agents to torture people. I catalogue these and government lying about them in the book.

Daily Bell: What do you think of the Constitution and how it was written and the principles it espouses?

Judge Napolitano: When it was written it had some defects in it. It permitted slavery; it even permitted the slave trade. So one can love the restraint to impose on government, and one can love the bill of rights. One can appreciate the separation of powers within the federal government and the federal system as it relates to sovereign states that can act as a check to the federal government. But once we overcame things like discrimination based on race, and discrimination based on gender, it is a brilliant document that guarantees liberty and ensures the separation of power. Now unfortunately it has been harmed by at least two amendments that are unconstitutional. Now here is an interesting question: Can a part of the Constitution be unconstitutional? The answer is yes. The 16th amendment and the 17th amendment encapsulate the income tax and the changing of the manner in which the US Senate is elected. So the Constitution we have today is nowhere near the beautiful balanced instrument of limited government that the framers gave us. It's barely a shadow of it's original self.

Daily Bell: Some say the Constitution was a step backward from a less structured federation of states. Agree or disagree – and why?

Judge Napolitano: I agree. I do agree. I think that we would be far happier today under the Articles of Confederation than under the current Constitution, but we would also be happier today under the Constitution were it interpreted as it was intended to be. Unfortunately, almost from the beginning, and certainly with Chief Justice John Marshall, we bear witness to the march away from state sovereignty, the march away from individual liberty and the march toward federal dominance. This march has accelerated and decelerated at various times in our history. Usually at wartime it becomes more accelerated. But from the end of the Civil War and certainly from and after the FDR era, the march has consistently been away from state sovereignty away, from individual liberty and toward federal dominance.

Daily Bell: Did the Constitution lay the foundation for the War Between the States?

Judge Napolitano: I think War Between the States was fought over the issue of federal dominance. I think slavery was not the reason for the War Between the States. I think that Lincoln was a dictator who was terrified that by the loss of tariffs from southern ports – about 55 million dollars a year in 1860. it was a huge portion of the federal government's income, which consisted at the time of tariffs, user fees and land sales. It was the loss of those ports that caused Lincoln to wage war against the states. I don't think it was the Constitution that facilitated war. I think it was monster government that facilitated the War Between the States. I think slavery would have been eradicated on its own, much as it had been in Puerto Rico and Brazil and Portugal and Great Britain and even years earlier in western Europe.

Daily Bell: Would America have been better off without a Constitution?

Judge Napolitano: No, I don't think so. America is better off with a Constitution if it meant what is said and interpreted as written. Because it does say, on its face, that there are certain guarantees. Regrettably, the government has rarely upheld those guarantees. The beauty of the Constitution was the idea of checks and balances. Men, as Madison said, "are not angels." They will be drawn more toward power than toward liberty if there isn't something to check the drive toward power.

Daily Bell: Were the Articles of Confederation superior?

Judge Napolitano: I can't answer that because they didn't exist long enough to know that. They certainly permitted far weaker central government, far less federal tyranny, and far more state sovereignty than we have today. The people who took over the government in the years immediately following the Constitution – Washington, Adams, Hamilton and the Federalists – skewed the laws of the land and the behavior of the judiciary in the earliest parts of our history. Had John Marshall never been born, or had he never been the Chief Justice, we would have a lot more freedom and a lot more choices today. President Reagan used to remind people that the beauty of the country is you could vote with your feet. Meaning if you don't like the pervasive taxation in Massachusetts you can move to New Hampshire; if you don't like the pervasive regulation in New Jersey you can move to Pennsylvania. The more centralized the power is in Washington, DC, the less differences there are between the states. Then there's nowhere to go. 

Daily Bell: And what about your book, Constitutional Chaos? What happens when government breaks its own laws?

Judge Napolitano: Constitutional Chaos is my own odyssey on the bench and intellectual journey toward libertarianism. It also catalogues, breaches behavior of the government breaking its own laws. Trying a judge for example for bribery and bribing witnesses to testify against him. So then the prosecution in the courtroom committed the very same crime that they were prosecuting the defendants for. Another book, Constitution in Exile is a walk through the Constitution, from the first phrase to the end of the last amendment and an explanation of what it should mean, and what it was intended to mean – versus what it has become. A Nation of Sheep is pretty much a catalogue of the most exquisite violations of the Constitution and the post WWII era. It shows how we have lost liberty and the states have lost sovereignty as a result of these violations, which were sanctioned by the Supreme Court or upheld by voters.

Daily Bell: When did economics and law diverge? When law departed from Common Law?

Judge Napolitano: No ... when the government violated the Constitution by authorizing the states to interfere with private contracts and then eventually interfering with private contracts itself. I mean much of this was done under the Commerce Clause. The Commerce Clause was written to keep commerce between the states regular, not to enable Congress to regulate every aspect of the movement of goods from one state to another. Once Congress achieved that power and the court condoned it, we found ourselves in a period where the Congress would write any law, regulate any behavior and tax any event subject to what it could get away with politically. Surely the legislature should be able to abrogate the common law, I mean there are aspects of the common law we would find repugnant today. For the most part common law was a codification of Western values enforced by British and ultimately English judges. It did things like prevent the King from crossing the threshold of your cottage or your palace depending upon your state in society, A person's home was his castle. That wasn't written down anywhere or in any stature enacted by the parliament but it was part of the common law. So there are a lot of traditions in the common law.

Daily Bell: Would we be better off with a system of private "common" law in the West?

Judge Napolitano: We still have common law in the West. Unfortunately much of it has been abrogated by legislatures. Under the Constitution, if the government wants to interfere with your freedom, whether it's the freedom to manufacture and sell widgets, or whether it's the freedom to shoot somebody in the head – whatever the freedom is – the government has to write the law down and challenge your before a neutral jury. You can't just declare as a matter of law that this behavior, in which you have already engaged, is no longer appropriate.

Daily Bell: Given John Farmers' recent book lambasting the Commission's conclusions, will 9/11 ever been investigated by a legitimate entity with credibility?

Judge Napolitano: John Farmer was Senior Counsel to the 9/11 Commission and my understanding of what he wrote was that the Commission was frustrated in its ability to find the truth not that the Commission itself was corrupt. So assuming that is the basis of his allegations, and I have not read the book, we will probably find out what happened at 9/11 – but only after the cast of characters is dead. I mean, just look at the JFK assassination. People take for granted today that the CIA was involved. Sometime in the future, the people will take for granted that the American government looked the other way when these monsters of 9/11 were coming, just like they looked the other way at Pearl Harbor and the Gulf of Tonkin or whenever they wanted to create war in order to enhance power over us.

Daily Bell: Did America ever go bankrupt? Is the country in legal receivership?

Judge Napolitano: Well, the government is bankrupt almost since the very beginning. I mean it's hard to think of any aspect of the government, which is not bankrupt. We collectively owe 14 trillion dollars ... actually about 12-and-a-half but it's authorized to go up to 14. Should the country go into receivership? The real debt, money legitimately loaned to the federal government, should be paid back by the sales of assets. I mean the Federal government owns more than 14 trillion in assets and it should have to sell them to liquidate the debt. We don't need a Federal Reserve; we don't need federal dollars in order to be prosperous. Indeed the Federal Reserve controlling federal dollars has diminished our prosperity.

Daily Bell: Is America currently under a state of emergency and legally led only by the president?

Judge Napolitano: Presidents usually get their way with Congress, even when they want Congress to violate the Constitution. A state of emergency may exist in the minds of certain politicians, but it's a non-legal phrase. There's no such thing, constitutionally, as a state of emergency. Presidents would like us to think we are in a state of emergency because when we're are afraid, we surrender. That's why the so-called great American Presidents were all wartime presidents, because they were able to scare people into giving them more power. So the answer to that question is it depends who you ask.

Daily Bell: Are the 14th, 15th and 16th amendments legal and constitutionally binding in your opinion?

Judge Napolitano: There's a lot of dispute about the adoption of the 14th amendment. It is a historical fact that several states after adopting the 14th amendment rescinded their adoption but the Congress counted their adoption anyway. It's a historical fact that the 13th amendment was adopted at the point of a gun, figuratively and literally. Troops in the streets in the South would not leave until Southern legislatures adopted the 13th amendment. However, slavery is about as repugnant to natural law as is imaginable. So the 13th amendment is a good thing. And the 14th amendment's requirement of equal protection is obviously a good thing. Should they have been enacted freely? Yes. Were they? No.

Daily Bell: What do you think of tax resisters who make arguments against the graduated income tax? Are any of them valid?

Judge Napolitano: I think all taxation is theft. I'm not talking about user fees; I am taking about the government taking money from you for the privilege of engaging in a commercial transaction or for the privilege of earning income. It's moral theft. But as it is lawful, I can't encourage tax resistance because I would be encouraging criminal behavior. I can encourage the repeal of the 16th and 17th amendments that would shrink the government back down to it's normal size and starve. But until that is the case, if you want to stay our of jail you better pay your taxes.

Daily Bell: You lecture nationally on the Constitution and human freedom. Are your lectures well received? Has the reception grown friendlier in the past decade?

Judge Napolitano: I have been fortunate enough to get before audiences that generally do receive them well. The more the government regulates, the more material it gives me. I always tell my audiences I'm a simple night watchman, who watches the government under cover of darkness as it steals your property and your liberty. For the most part people who watch know the truth.

Daily Bell: Why did we move from private law to "public" socialized law?

Judge Napolitano: I don't know what you mean. If you are asking me why does the federal government control private behavior it's because the courts have let them get away with it and the public treasury has become a public trough. The people sent to Washington will give their supporters as big a piece of pie as they can.

Daily Bell: Should the Supreme Court be the final legal authority of the land?

Judge Napolitano: Yes, the Supreme Court should be the final arbiter of our rights. It should interpret the Constitution as it was written and it should interpret the Constitution to mean what it says. The whole purpose of a life-tenured independent judiciary is to be the anti-democratic branch of government. The democratic branches of government will never regulate themselves. Without a branch of the government to assure our natural rights and our constitutional rights, there would be nothing to stop the tyranny of a majority. Then 51% of the voters could take the property and the freedoms from the other 49%. Because we have a society in which presidents for the most part respect the Supreme Court, we can still have the rule of law.  

Daily Bell: Why does America have such a high incarceration rate compare to the rest of the world?

Judge Napolitano: Because we have a pseudo-Victorian attitude about victimless crimes! I say "pseudo" because we pretend to be the freest country on the planet. I say "Victorian" because we still have this attitude that certain private, harmless behaviors simply can't be condoned by a government in America. And for that reason, things like recreational drugs, prostitution and pornography are prosecuted. Much of what the federal government does on the criminal side should not be the subject of criminal prosecutions but the court lets the feds get away with it. There are over 4,000 federal criminal statutes about 95% of which cannot be tied to any specific direct grant of power in the Constitution to the federal government.

Daily Bell: Why doesn't current public law pay attention to economic laws – specifically the law of supply and demand and marginal utility?

Judge Napolitano: I wish I knew the answer to that. For some reasons, some of the fiercest defenders of civil liberties are also some of the fiercest adversaries to commercial liberties. I would argue that my fellow libertarians are the only people in the country who truly defend freedom because we defend civil liberties and commercial liberties. Even the flip side of this is deplorable. The Republicans, which from time to time have acted as if they defend commercial liberties, have assaulted civil liberties as well. We have migrated from a two-party system into a one-party system, the big-government party. There's a democratic wing that likes taxes and wealth transfers and assaults on commercial liberties and there's a republican wing that likes war and deficits and assaults uncivil liberties. Neither of them is interested in true freedom. The separation of civil liberties from commercial liberties is what has enabled this to happen.

Daily Bell: What are some of the seminal papers that you have written and where can readers find them?

Judge Napolitano: I guess if you Google my name, you will find them. I have written, in addition to my five books on the Constitution, a couple of dozen papers for websites and daily newspapers. The site that I write most frequently for is lewrockwell.com, in which I catalogue governmental excesses. From time to time, mainstream newspapers will publish what I have written as well – the Wall Street Journal, the LA Times, the New York Times and other lesser known but well established mainstream daily newspapers.

Daily Bell: Do you have any final thoughts? Anything you want to say to readers that we didn't ask about?

Judge Napolitano: I have enjoyed this interview. I hope the readers enjoy it as well. The people have to be vigilant about the loss of freedom. They have to press representatives in Congress to justify their behavior. And the camera is the new gun. Whenever you deal with the government, whether it's a janitor or school teacher or a police office or a legislator, you want to film it because that will scare the daylights out of them. The government hates transparency and it hates fresh air and light and fresh air and light is a way to scare it back into its confines.

Daily Bell: Thanks so much for sitting down with us. We respect your terrific presentations on Fox News and elsewhere.

We were very pleased to interview Judge Napolitano who is a beacon of free-market thinking in an otherwise drearily illuminated mainstream media. The only thing we can find to disagree with him on (really, we should not actually have the temerity to disagree with him on anything!) is the idea that justice should be homogenous – ie: that a Supreme Court should have the last word. We would like to see a more powerful application of common law make a comeback.

When we write of common law, we are actually referring to a patchwork of law and courts that sprang up in Europe and especially in Britain. These courts had different standards for justice and different ways of arriving at a verdict. We see nothing inconsistent about this, as we believe that most justice is "rough" (one way or another) and that cases are unique.

The idea of competitive, marketplace justice is, of course, most controversial. (Any kind of marketplace competition is a bit controversial these days.) What one hears most of the time in response is that such justice would be "perverted" by the money that would flow into the system. We think just the opposite. As we understand it, the old common law courts could be subject to private compensation; we believe that private payments guarantee a better outcome than the current statist paradigm. What the West subscribes to today, is a system in which the same entity (the state and its appurtenances) makes the law, enforces the law, renders the verdict and prescribes the sentence. To us this process is fraught with conflicts of interest. The same person (the Judge) who is rendering the verdict is on the same payroll as the prosecutor. Talk about pressure to conform ...

In free-market common law, the aggrieved party and putative offender might both pay a judge to render a verdict. The judge, who did this for a living, would have every incentive to present a fair verdict because such verdicts would add luster to his or her reputation and generate additional business. Additionally, common law has the added advantage that not everyone would take advantage of it, and that some would seek to settle grievances on their own. This would result in a very polite society (and has in the past) as no one would want to offend anyone else. Once upon a time, "manners" were far more elaborate and prevalent for a reason.

There is also an issue of honor and morality. In communal societies, where power has devolved to local levels, religion can often play an important role in how society is organized and how law is administered. Such societies are often shame-based, or have been in the past, and the prospect of shaming may act as a behavior modifier (as it does today but only vestigially). The combination of religiously-oriented communal societies with local laws and customs, a common law heritage, and the practice of dueling and so-called "vigilante justice" certainly poses an alternative to the current system of Western justice.

We can see from the interview that Judge Napolitano would have a hard time agreeing with us regarding free-market common law. But as hard as it is to fathom, we believe justice to be a kind of commodity – one to be served, especially, without a slavish following of precedent. One focused instead on the unique aspects of cases provided.

In the US, at any one time, millions are locked in a variety of penitentiaries with wildly fluctuating sentences and gravely different conditions. The various sentences have been getting longer as well, with even minor infractions garnering five, ten or even 15 or 20 years or more. In fact, prisons have become a kind of privately-run industry in some cases and are seen by many communities as a way to provide public employment.

The idea that justice ought to provide an employment opportunity and that it ought to be administered via the state – which is providing all the actors involved, is one that in our humble opinion has many tragic and terrible problems. The result is available for anyone to see; myriad injustices, prosecutorial corruption at all levels and, of course, an increasingly over-zealous police force of local, regional and national law enforcement agents dedicated to pursuing citizens regardless of the circumstances. This last development is especially disturbing. It is increasingly leading to illegal wiretapping, indiscriminate tazering, shootings, illegitimate searches and seizures, and all the other paraphernalia of the modern, Western authoritarian state.

Our gratitude goes to Judge Napolitano for speaking up regarding these issues – especially as they relate to the West's (and America's) growing authoritarianism. He is one of a few with a national, mainstream platform in the US who does. More should, and hopefully will.