Judge Napolitano on the Virtues of Private Justice

By Anthony Wile

The Daily Bell is pleased to present this exclusive interview with Judge Andrew Napolitano (left).

Introduction: Judge Andrew P. Napolitano joined the FOX News Channel (FNC) in January 1998 and serves as its senior judicial analyst. 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 presided over 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’s many books include: It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom (2011), Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (2006), A Nation of Sheep (2007) and NY Times bestsellers The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land (2007) and Lies the Government Told You: Myth, Power and Deception in American History (2010).

Daily Bell: Let’s get started. What about the Rand Paul controversy? Where do you stand on his endorsement of Romney?

Judge Napolitano: Rand Paul is a friend of mine but yes, that endorsement certainly got him slaughtered on his Facebook page; they were running 50:1 against him. My whole view – and I’ve said this on air – Mitt Romney‘s views are closer to Barack Obama‘s than they are to Thomas Jefferson‘s and he presents just a slightly different version of big government. In fact, in the defense policy he might actually be worse than the President because he seems to be itching to start a war with Iran. In terms of domestic policy, he contemplates additional borrowing, maybe a little less than the President has borrowed. If the President is re-elected he might bring us to $20 trillion in debt by 2016; Romney might bring us to $18 trillion in debt by 2016. Either of those federal debts would be unsustainable.

Daily Bell: Give us a quick summation and your thoughts on the election this year.

Judge Napolitano: I have harshly criticized Paul Ryan for having voted to offer the president to raise the debt ceiling; I have also criticized him for his support of the Patriot Act and its extensions and the National Defense Authorization Act. He is a classic George Bush Republican who does not believe that the Constitution means what it says. I was heartened to hear him quote me the other day when he said ‘our rights come from our humanity,’ which is a gift from God, and they don’t come from the government. But unfortunately, he lied by his vote to take our rights in the legislation that I have just articulated.

On the other hand, I don’t think his designation by Governor Romney has succeeded in getting capital and getting the Governor’s taxes off the front page, and has zeroed the media focus on what should be an essential aspect of this election. That is who would be a better steward of the economy. I say steward because they both want to be steward of the economy. To me, the steward of the economy should be the people who participate in it and not the government. It should be the free choices of entrepreneurs and consumers; they shouldn’t need the hand of the government.

Having said that, I disagree with the fundamental premise of both of their campaigns. Now, the President believes that government is there for people who can’t do what they should do for themselves. Governor Romney wants to make government more efficient. I don’t want to make it more efficient; I want most of it to go away. I’m sure I would be a challenger of much of what a President Romney would do – and I know that I sometimes get in trouble when I use the Romney/Jefferson comparison but I don’t think that’s an opinion; I think it’s a truism. His views are much closer to Obama than they are to Jefferson.

Daily Bell: Not much difference between the two of them would you say?

Judge Napolitano: Well, no, but that’s the society we’ve created. We really don’t have two political parties anymore. We have one big government party, with a democratic wing that likes war and taxes and individual welfare and staying in power, and a republican wing that likes war and deficits and corporate welfare and staying in power. There is very little difference between them. I mean, Ron Paul and Gary Johnson are so different from the mainstream Republicans and the mainstream Democrats; they really present the only alternative. It’s basically a choice between Tweedle Dee and Tweedle Dum.

I understand the animosity towards the president, I understand the fear he instills in those who embrace traditional values, I understand the anybody-but-Obama. I understand the argument of those who say at least Mitt Romney is a step in the right direction. My own view is that those who are afraid of big government under President Obama will be equally as afraid of it under a President Romney.

Daily Bell: We saw he ran a rare press conference disputing the accusations that he is running an unfair and negative election campaign.

Judge Napolitano: Well, this is a very negative campaign. The President cannot run on his record. His record on the economy is reprehensible and he is, of all occupants of the White House, the most dangerous to human freedom since Abraham Lincoln. He doesn’t want to touch either of those subjects so his only approach is to attempt to destroy Governor Romney.

Daily Bell: What’s your take on Ron Paul? Give us a summation of his career.

Judge Napolitano: I think he probably continues to go around the country, keeping the dialogue going of small government and maximum individual liberty. I think he probably passes the mantel to his son, Senator Paul. Senator Paul and Governor Johnson probably battle it out and if they can’t come to some kind of agreement as to who will personify human freedom and who, in public life, will be the champion of it. I think that’s probably a good thing because I think the movement will continue to grow.

With Congressman Paul free from congressional duties he might actually stir up the pot even more then he’s done already. My next book, which comes out after election day, is an assault on the progressive era, dedicated to Ron Paul in large measure because no person in these times has done more to remind people about the loss of liberty than he. He has been an inspiration to millions and among those millions is me.

Daily Bell: Are you a backer of Rand’s generally?

Judge Napolitano: Look, I understand why he endorsed Governor Romney. Of course, I would never do it but I understand why he did it because he has to live in the Republican Party and has to have peace with the Republican establishment in the United States Senate. I am sure it was done with the consent of his father. I understand it did not go over well with rank and file and I know that because it didn’t go over well with me. Once this election is over, whether Governor Romney wins or the President is re-elected, I think Rand Paul will be his usual self and that usual self is one of the very few members of the Congress who believes that the Constitution means what is says.

Daily Bell: You were negative about the freedom trend in the US last time we spoke. Are you more hopeful now?

Judge Napolitano: No, not at all. No. The government keeps getting larger and more in our faces. There is less outrage than there used to be. The Air Force predicts that in ten years there’ll be 30,000 drones in the sky at any given moment and that some of them will be the size of golf balls and some will be the size of mosquitoes, and nobody is complaining about that. People seem willing to give up their privacy in exchange for safety. People forget they need protection from the government.

People are confusing freedom and safety. Freedom does not promote safety; freedom promotes unfettered choices, free from government interference. It accepts the fact that there will be some dangerous things in society but it assumes that risk from danger without is a more desirable state of affairs than an authoritarian government than within. I think these are bad days for freedom and unless a Ron Paul, Rand Paul or Gary Johnson is in the White House they will continue to get bad. I just couldn’t imagine a President Romney dismantling the security state, not enforcing the Patriot Act, disregarding the National Defense Authorization Act, stopping all the drones. I just couldn’t imagine that happening. Until that happens, we’re at the tender mercies of whatever faceless bureaucrats are running the government.

Daily Bell: How did the US Constitution get perverted?

Judge Napolitano: Well, I think that the problems with the Constitution began in the Lincoln administration, when he drilled people for doing what the founding fathers did, which was seceding from an overbearing central government. In the so-called Reconstruction years, which really were the years of military occupation in the South – Reconstruction is just a euphemism for that – the military directed daily life in the South for 10 years. That really whetted the federal government’s appetite for more power. Now we see a recession in that power for the next 30 years and then it comes back in the Progressive Era, and the progressives are so all-encompassing that they sit even on the courts. And the courts let Teddy Roosevelt and Woodrow Wilson get away with things like, ‘we are not going to let the Constitution stand in our way’ for what the people need. That’s utterly inconsistent with their oath to office.

Of course, the real serious troubles with the Constitution are with the FDR years. FDR has eight members on the Supreme Court and they are doing bizarre things like saying that wheat to the farmer, which grows in his backyard, which is ground into flour and made into baked goods all of which are consumed by his family, somehow constitutes interstate commerce, and people accept that with a straight face. That’s, of course, the infamous, Wickard v. Filburn case in 1942. From and after that case, all bets are off and the Congress now knows that its authority to regulate even minute behavior will be held up by the court, even behavior so infinitesimal that it’s not measureable by standard economic mechanisms. Because Wickard v. Filburn basically says if small infinitesimal activity ended up with other small infinitesimal activity, that’s how the entire country could affect interstate commerce and the government could regulate even the small, infinitesimal parts of it. This would send Jefferson and Madison to the madhouse if they learned that the Supreme Court did this and the Congress acted upon it but as we know, that’s what happened.

Daily Bell: Comment on the Supreme Court’s decision regarding Obamacare, please.

Judge Napolitano: Well, I think it’s one of the most tortured, twisted, unexpected, unaccepted, created opinions in modern times. Think of it this way: The court is an arbiter between the sides that are arguing before it. Either one side is right and the other side is wrong or one is partially right and the other side is partially right but the court really is without authority to come up with its own theory of a piece of litigation. So if both sides say this is not a tax, it is inconceivable that the courts on its own could say it’s a tax. Rulings must come from the arguments made before it; otherwise there is no ability to rely on what the court will do if you are really just rolling the dice when you go in there.

Now, I know that sometimes bizarre compromises are necessary, to keep the five-person majority from becoming a four-person minority but this compromise – let’s call this thing a tax even when its proponent denied that it was a tax – is unprecedented in our history. The Supreme Court has never declared something to be a tax that the congress did not say was a tax. Think about it, the opinions to use for the following proposition: The government can do whatever it wants, as long as the penalty for your not complying with the government’s wishes is the imposition of tax, even if the behavior regulated by the government doesn’t come from the Constitution. That is simply unacceptable. It is simply blatantly unconstitutional. That is simply offering the Congress on a dish unlimited federal power that even the Congress and the president didn’t ask for.

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