Judge Andrew P. Napolitano from Creators Syndicate https://www.creators.com/read/judge-napolitano Creators Syndicate is an international syndication company that represents cartoonists and columnists of the highest caliber. en Mon, 08 Mar 2021 09:19:51 -0800 https://www.creators.com/ http://blogs.law.harvard.edu/tech/rss Judge Andrew P. Napolitano from Creators Syndicate https://cdn.creators.com/features/judge-andrew-p-napolitano-thumb.jpg https://www.creators.com/read/judge-napolitano 72ba34598856f260f266de40e088eb8d Silencing Free Speech for 03/04/2021 https://www.creators.com/read/judge-napolitano/03/21/silencing-free-speech Thu, 04 Mar 2021 00:00:00 -0800 <p></p><p>"<i>In short, we do not need good laws to restrain bad men. We need good men to restrain bad laws.</i>" &#8212; G.K. Chesterton (1874-1936)</p> <p>Why do people in power try to silence speech with which they disagree?<p>Updated: Thu Mar 04, 2021</p> cb2428ec808dd6201441f3c0676502f7 Who Owns Your Face? for 02/25/2021 https://www.creators.com/read/judge-napolitano/02/21/who-owns-your-face Thu, 25 Feb 2021 00:00:00 -0800 <p></p><p>After listening to Dr. Anthony Fauci suggest last weekend that we should expect to be wearing two masks on our faces everywhere we go until the end of 2022, I began thinking again about first principles.</p> <p>Fauci is entitled to express his opinions. Yet, because he is the president's chief adviser on COVID-related medical matters, I cringed when I heard what he said. Was this a trial balloon or did he mean it literally? Are these suggestions or will they become commands with the purported force of law?<p>Updated: Thu Feb 25, 2021</p> 03a118ee88bfb9c953790b18005228ef Trump, Impeachment and the Constitution for 02/18/2021 https://www.creators.com/read/judge-napolitano/02/21/trump-impeachment-and-the-constitution Thu, 18 Feb 2021 00:00:00 -0800 <p>The Constitution is the supreme law of the land, thus, all government behavior must conform to it. It is, of course, notwithstanding its supremacy, an imperfect document. Its original iteration in 1789 &#8212; and even after the addition of the Bill of Rights in 1791 &#8212; implicitly recognized slavery, permitted the states to limit voters to adult white landowning men and did not require the states to protect personal liberty.</p> <p>Under the Constitution, impeachment &#8212; a charge accusing a present or former federal officeholder of paramount wrongdoing &#8212; can only be had if the charge is for a criminal act. The constitutional language &#8212; "treason, bribery, or other high crimes and misdemeanors" &#8212; means the criminal act must be grave and strike at the security of the republic.</p> <p>President Andrew Johnson was impeached in 1868 for firing his secretary of war, in defiance of a statute &#8212; which was no doubt unconstitutional &#8212; prohibiting him from doing so. Whatever he did, it was not criminal, nor was it the type of behavior that affected the security of the republic. He was a southerner who was despised by the Radical Republicans who ran the government after Lincoln's death. He was acquitted in the Senate by one vote.<p>Updated: Thu Feb 18, 2021</p> 4ca71508c8af8adf32f733a582f8640c The Coming Abortion Wars for 02/11/2021 https://www.creators.com/read/judge-napolitano/02/21/the-coming-abortion-wars Thu, 11 Feb 2021 00:00:00 -0800 <p>Amid arguments in the Senate over whether the impeachment of former President Donald Trump is constitutional, and in the House over whether $1.9 trillion is enough money to borrow and distribute to select taxpayers and institutions, there have been rumblings among Democrats to make it more difficult for the Supreme Court to invalidate or permit states to gnaw away at Roe v. Wade.</p> <p>Roe v. Wade is the 1973 Supreme Court opinion that essentially establishes &#8212; within the privacy of the patient-physician relationship &#8212; the right to choose to abort a baby in the womb. The opinion holds that during the first trimester of pregnancy, the states have no interest in regulating abortion beyond the health of the mother. During the second trimester, the states can regulate the procedures used, but they may not ban or interfere with abortions. During the third trimester, the states may ban or permit abortions.</p> <p>Roe's medical cornerstone is viability &#8212; the ability of the baby to live outside the womb. In 1973, viability, generally, was at the beginning of the third trimester. Today, viability is closer to conception. Hence, state regulations protecting post-viable pre-third trimester babies.<p>Updated: Thu Feb 11, 2021</p> 7127874cb7825f1505e12ee492078915 Surveillance Kills Freedom for 02/03/2021 https://www.creators.com/read/judge-napolitano/02/21/surveillance-kills-freedom Wed, 03 Feb 2021 00:00:00 -0800 <p><i>"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone &#8212; the most comprehensive of rights, and the right most valued by civilized men."</i> &#8212; Justice Louis D. Brandeis (1856-1941)</p> <p>When Justice Louis D. Brandeis referred to the right to privacy as "the right to be let alone," it was 1928. He was dissenting in a Supreme Court opinion called Olmstead v. United States, in which federal agents tapped the telephone lines of Roy Olmstead and others and recorded their conversations about importing alcohol into the U.S. during Prohibition. They did so without search warrants. On the basis of the tapped conversations, Olmstead and his colleagues were convicted of conspiracy to violate federal law. The Supreme Court upheld their convictions.</p> <p>The issue in the case was whether the Fourth Amendment's prohibition of searches and seizures without a warrant issued by a judge based on probable cause of crime includes surveillance. When Brandeis dissented in Olmstead, telephones were novel and not in widespread personal use. It would be 39 years before the Supreme Court accepted Brandeis' dissent as properly encapsulating the understanding of the framers when it characterized surveillance as a search.<p>Updated: Wed Feb 03, 2021</p> e53adaf74f367dac4d518c5076ed1583 The Constitution Is Not For Sale for 01/27/2021 https://www.creators.com/read/judge-napolitano/01/21/the-constitution-is-not-for-sale Wed, 27 Jan 2021 00:00:00 -0800 <p></p><p>Last week, Joseph R. Biden was inaugurated as the 46th president of the United States. The federal government began arresting those it claims attempted to interfere violently with Congress' constitutional duties to authenticate Electoral College votes on Jan. 6. The Senate announced it would go forward with a second impeachment trial of Donald J. Trump, even though he is no longer in office. And the Defense Intelligence Agency sent a two-page memo to Senator Ron Wyden, D-Ore.</p> <p>Guess which of these events never made it to the front pages? If you guessed the DIA memo, then you'd be correct. In that memo, <span class="column--highlighted-text">the government acknowledged for the first time that it willingly and knowingly has violated the Constitution by using commercially available software to track the movements of innocent people in America without search warrants.</span><p>Updated: Wed Jan 27, 2021</p> 38b29dfbb8d9d54006ac5fc3a7215831 Does the First Amendment Restrain Big Tech? for 01/21/2021 https://www.creators.com/read/judge-napolitano/01/21/does-the-first-amendment-restrain-big-tech Thu, 21 Jan 2021 00:00:00 -0800 <p></p><p>When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists' grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.</p> <p>In those days, public speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king &#8212; as Jefferson's were in the Declaration &#8212; they constituted treason.<p>Updated: Thu Jan 21, 2021</p> 970389f407785c6f87bbc74ef75ebc44 Trump's Speech Is Protected Speech for 01/14/2021 https://www.creators.com/read/judge-napolitano/01/21/trumps-speech-is-protected-speech Thu, 14 Jan 2021 00:00:00 -0800 <p></p><p>Former New Jersey Governor Chris Christie offered his understanding last weekend of President Donald Trump's alleged role in the Capitol riots when he said, "If inciting to insurrection isn't impeachable, I don't know what it is."</p> <p>He must have been addressing the political, ethical, practical and emotional implications of Trump's exhortations to the crowd. Christie knows that the Constitution expressly requires that the House of Representatives have evidence that the president committed a crime before it can impeach him.<p>Updated: Thu Jan 14, 2021</p> abad1bbf8746fc064008a4afb6a726bd The Presumption of Liberty for 01/07/2021 https://www.creators.com/read/judge-napolitano/01/21/the-presumption-of-liberty-9563d Thu, 07 Jan 2021 00:00:00 -0800 <p>The concept of personal liberty is that our rights come from our humanity. If you believe in a Supreme Being, as I do and as the Declaration of Independence presupposes, then you acknowledge these rights as a gift from the Creator. If you doubt or reject the existence of a Supreme Being, you can still accept the personal origin of these rights. Humans are rational beings and the essence of natural rights is the exercise of reason to seek the truth. The individual employment of unimpeded reason is the exercise of a natural right.</p> <p>Either way &#8212; whether divinely created or humanly adapted &#8212; under the Natural Law, our rights come from within us. This is not a mere academic argument. Rather, it has profound everyday consequences. A right is an unconditional claim against all others that does not require validation or approval. Thus, your right to the freedom of speech enables you to think what you wish and say what you think and publish what you say. Nature &#8212; or as Thomas Jefferson said, "Nature's God" &#8212; has given you that right.</p> <p>The origin of natural rights is self-evident. How is it self-evident that our rights are natural and not governmental in origin? Because we have them in the absence of government.<p>Updated: Thu Jan 07, 2021</p> dd97fcfa44dd1168ebc3ef5fcb2cfe5e Office Pool 2021 for 12/31/2020 https://www.creators.com/read/judge-napolitano/12/20/office-pool-2021 Thu, 31 Dec 2020 00:00:00 -0800 <p>1) One year from now, the president of the United States will be</p> <p>a. Joseph R. Biden, Jr.</p> <p>b. Kamala Harris.<p>Updated: Thu Dec 31, 2020</p> 86c74282dfb1e834c1085b8c962f1777 Christmas in America for 12/24/2020 https://www.creators.com/read/judge-napolitano/12/20/christmas-in-america-2de4c Thu, 24 Dec 2020 00:00:00 -0800 <p></p><p>What if Christmas is a core belief in a personal God who lived among us and many times offered a freely given promise of eternal salvation that no believer should reject or apologize for? What if Christmas is the rebirth of Christ in the hearts of all believers? What if Christmas is the potential rebirth of Christ in every heart that will have Him, whether currently a believer or not?</p> <p>What if Jesus Christ was born about 2,000 years ago in Bethlehem? What if He is true God and true man? What if this is a mystery and a miracle? What if this came about as part of God's plan for the salvation of all people? What if Jesus was sent into the world to atone for our sins by offering Himself as a sacrifice? What if He was sinless? What if His life was the most critical turning point in human history? What if the reason we live is that He died?<p>Updated: Thu Dec 24, 2020</p> 3fd861afbfcf9f0dd89f59798c12ce7a Taking Christmas Seriously for 12/17/2020 https://www.creators.com/read/judge-napolitano/12/20/taking-christmas-seriously Thu, 17 Dec 2020 00:00:00 -0800 <p>God works in strange ways. Last weekend, two friends and I were deeply moved when we saw a theatrical production of Charles Dickens' "A Christmas Carol." This is the famous and popular tale of the transformation and redemption of Ebenezer Scrooge from a rasping, grasping old miser into a lovable, generous old man who, late in life, becomes determined to make amends for all his extreme selfishness and his public denunciations of charity.</p> <p>After a tossing-and-turning Christmas Eve night, during which he has dreams showing him lonely in his youth, showing present suffering he could easily alleviate, and showing future rejoicing at his death, he awakes on Christmas morning a new man. He immediately parts with some of his wealth to the very people and institutions he formerly rejected, makes amends with relatives he had ignored, and his heart swells with joy &#8212; a joy he had never known.</p> <p>It was a joy his riches had never brought him.<p>Updated: Thu Dec 17, 2020</p> 481dce442ca610cdc3cc920471b0e60f Can the President Pardon Himself? for 12/10/2020 https://www.creators.com/read/judge-napolitano/12/20/can-the-president-pardon-himself Thu, 10 Dec 2020 00:00:00 -0800 <p>Most presidential pardons &#8212; indeed all pardons that President Donald Trump has issued &#8212; have been for specific crimes of which the subject of the pardon has already been charged and convicted. Yet, Trump, never one to be restrained by precedent, has let it be hinted that he might issue prophylactic pardons to relatives and colleagues who have neither been convicted nor charged with any crimes. And he might pardon himself. Can he do that?</p> <p>The short answer is yes. Here is the backstory.</p> <p>The pardoning power is expressly and exclusively granted to the president in the Constitution. Article Two, Section 2, Clause 1, states that the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment." When unpacked, that broad language reveals that the president can only pardon for federal crimes, not for anyone's impeachment, and he does not need the approval of anyone else in the government.<p>Updated: Thu Dec 10, 2020</p> 5d4d6a2f59160e52fd4ac35f638c9d14 The First Freedom for 12/03/2020 https://www.creators.com/read/judge-napolitano/12/20/the-first-freedom-d88d7 Thu, 03 Dec 2020 00:00:00 -0800 <p></p><p>"<i> But even in a pandemic, the Constitution cannot be put away and forgotten. </i>" &#8212; Supreme Court of the United States, November 25, 2020</p> <p>When teaching law students about the Bill of Rights, professors often ask on the first day of class which is the first freedom protected by the First Amendment. The students invariably answer, "freedom of speech." It is not. If the framers were trying to tell us which freedom is the first among equals, they did so by listing the religion clauses ahead of the freedom of speech.<p>Updated: Thu Dec 03, 2020</p> 18a89ef0a8901b1213be467839ab772a Thanksgiving 2020 for 11/26/2020 https://www.creators.com/read/judge-napolitano/11/20/thanksgiving-2020 Thu, 26 Nov 2020 00:00:00 -0800 <p></p><p>"<i>Government requires make-believe. Make believe that the king is divine, make believe that he can do no wrong or make believe that the voice of the people is the voice of God. Make believe that the people have a voice or make believe that the representatives of the people are the people. Make believe that governors are the servants of the people. Make believe that all men are equal or make believe that they are not</i>." &#8212; Edmund S. Morgan (1916-2013)</p> <p>What if the government's true goal is to perpetuate its own power? What if the real levers of governmental power are pulled by agents and diplomats and by bureaucrats and central bankers behind the scenes? What if they stay in power no matter who is elected president or which political party controls either house of Congress?<p>Updated: Thu Nov 26, 2020</p> eb778281218fdc298f64cda9536d9860 Here We Go Again for 11/19/2020 https://www.creators.com/read/judge-napolitano/11/20/here-we-go-again-1d298 Thu, 19 Nov 2020 00:00:00 -0800 <p>"<i>Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because the law is often but the tyrant's will, and always so when it violates the right of an individual.</i>" &#8212; Thomas Jefferson (1743-1826)</p> <p>As if nanny state governors had been sleepwalking through the tyrannical shutdowns and their disastrous consequences last spring and summer, as if they were ignorant of the economic destruction of those they barred from going to work or operating their businesses, as if they thought it is lawful to assault natural rights and constitutional guarantees, these same governors are now beginning another wave of interferences with personal liberty.</p> <p>Slowly, over the past 10 days, while the eyes of the public and the media have been on the counting of votes in the presidential election and the ensuing allegations and litigations, governors in New Jersey, Pennsylvania, Michigan, Connecticut and New York have threatened to impose or have begun to impose their unconstitutional, illegal, immoral and illogical efforts to shut down society in order &#8212; they claim &#8212; to rid the land of the COVID-19 virus.<p>Updated: Thu Nov 19, 2020</p> d8dc626732134a3737de6e01f94fce0d Gina's Last Kiss for 11/12/2020 https://www.creators.com/read/judge-napolitano/11/20/ginas-last-kiss Thu, 12 Nov 2020 00:00:00 -0800 <p></p><p>"<i>I hold it true, whate'er befall;</i></p><i> <p>I feel it when I sorrow most.<p>Updated: Thu Nov 12, 2020</p> bebacf955171314fcd67a52a44a7fcfd The Government's Lust to Spy for 11/05/2020 https://www.creators.com/read/judge-napolitano/11/20/the-governments-lust-to-spy Thu, 05 Nov 2020 00:00:00 -0800 <p></p><p>In 2019, agents of the federal and state governments persuaded judges to issue 99% of all requested intercepts. An intercept is any type of government surveillance &#8212; telephone, text message, email, even in-person. These are intercepts that theoretically are based on probable cause of crime, as is required by the Fourth Amendment to the Constitution.</p> <p>The 2019 numbers &#8212; which the government released as we were all watching the end of the presidential election campaign &#8212; are staggering. The feds, and local and state police in America engaged in 27,431,687 intercepts on 777,840 people. They arrested 17,101 people from among those intercepted and obtained convictions on the basis of evidence obtained via the intercepts on 5,304. That is a conviction rate of 4% of all people spied upon by law enforcement in the United States.<p>Updated: Thu Nov 05, 2020</p> 4d82216d5ee10b8216a255e179420cd7 Thoughts on the Divided States of America for 10/29/2020 https://www.creators.com/read/judge-napolitano/10/20/thoughts-on-the-divided-states-of-america Thu, 29 Oct 2020 00:00:00 -0700 <p></p><p>During the darkest days of the American Revolution, Thomas Paine, the British-born-turned-American political philosopher, wrote of his adopted country, "These are the times that try men's souls." He was referring to the hard choices that were facing the colonists.</p> <p>History is filled with hard choices. They are often made hard by fear &#8212; fear of making the wrong choice, fear of chaos, fear of loss.<p>Updated: Thu Oct 29, 2020</p> c1087a79059081544ffa1170bbaaa71d A Brief History of Court Packing for 10/22/2020 https://www.creators.com/read/judge-napolitano/10/20/a-brief-history-of-court-packing Thu, 22 Oct 2020 00:00:00 -0700 <p></p><p>Since the death of liberal Justice Ruth Bader Ginsburg and the determination of President Donald Trump to fill her Supreme Court seat before Election Day with the traditionalist Judge Amy Coney Barrett, the concept of court packing has reared its head. The phrase "court packing" is a derogatory reference to legislation that alters the number of seats on the Supreme Court to alter its perceived ideological makeup.</p> <p><span class="column--highlighted-text">The origins of modern court packing are from the depression era when President Franklin Delano Roosevelt sought to expand the court from nine to 15</span> by adding a new justice for every sitting justice who declined to retire upon reaching his 70th birthday. FDR offered the plan in the spring of 1937, shortly after he was inaugurated to his second term. He had just been reelected in a landslide and was frustrated that much of his legislation had been invalidated by the Supreme Court as beyond the powers of the federal government.<p>Updated: Thu Oct 22, 2020</p>