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 Thu, 17 Jun 2021 18:06:03 -0700 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 933bc12f3c9facad745da184a04a3d61 The Only Privacy the Feds Protect is Their Own for 06/17/2021 https://www.creators.com/read/judge-napolitano/06/21/the-only-privacy-the-feds-protect-is-their-own Thu, 17 Jun 2021 00:00:00 -0700 <p>Last week, The New York Times revealed that in late 2017 and early 2018, prosecutors in the Department of Justice persuaded a federal grand jury to subpoena the telephone, email and texting records of about 20 people, including two members of Congress and their families, staffs and investigators, and one of the minor children of a staff member. Also subpoenaed were the records of Donald F. McGahn II, then the White House chief counsel, and his wife.</p> <p>In all, the government sought data on 73 phone numbers and 36 email addresses. The subpoenas identified the targets only by telephone number and computer identification number.</p> <p>The subpoenas were served on Apple, the custodian of these records. Also served upon Apple was a gag order signed by a federal judge instructing Apple not to tell anyone it had received the subpoenas. The government sought and obtained three annual extensions of the gag order. Such an order should have been challenged, as it is unconstitutional on its face.<p>Updated: Thu Jun 17, 2021</p> cb944cccfb9f9deb6792420267802d1c Torture Enters the Courtroom for 06/10/2021 https://www.creators.com/read/judge-napolitano/06/21/torture-enters-the-courtroom Thu, 10 Jun 2021 00:00:00 -0700 <p>For the first time in American history, a federal judge last week authorized the government to admit as evidence in a criminal case in a public courtroom words uttered by the defendant that were obtained under torture. </p> <p>The fruits of torture &#8212; which is any cruel or degrading or intentionally painful or disorienting behavior visited upon a person in captivity to induce compliance or to gratify the torturer &#8212; are not permitted in any court in the United States, and their inducement is criminal.</p> <p>Here is the backstory.<p>Updated: Thu Jun 10, 2021</p> a52795fecc84a28a3887cbc5a32fa3ae Taking Liberty for Granted for 06/03/2021 https://www.creators.com/read/judge-napolitano/06/21/taking-liberty-for-granted Thu, 03 Jun 2021 00:00:00 -0700 <p>"Eternal vigilance is the price of liberty." &#8212; Thomas Jefferson (1743-1826).</p> <p>No one knows if Thomas Jefferson personally uttered those words. They have been widely attributed to him, but they don't appear in any of his writings. If he did not literally utter them, he uttered the sentiments they offer. They remind us not to take liberty for granted.</p> <p>As America returns to pre-pandemic normalcy, we should think about the dangers of taking liberty for granted. This column has argued frequently that personal liberty is our birthright. It is a natural right. It doesn't come from the government. It comes from our humanity, which is a gift from God. As God is perfectly free, so are we.<p>Updated: Thu Jun 03, 2021</p> 7de0f6ac63b7cd256c8201ae0b6fb284 The Government's Community Caretaking Ruse for 05/27/2021 https://www.creators.com/read/judge-napolitano/05/21/the-governments-community-caretaking-ruse Thu, 27 May 2021 00:00:00 -0700 <p>Edward and Kim Caniglia had an argument in their Cranston, Rhode Island, home, during which Edward retrieved a lawfully owned unloaded handgun and placed it on their dining room table in front of Kim and said to his wife, "Shoot me now, and get it over with." Kim did not touch the gun and left the house for the evening. The next day, after she could not reach Edward by phone, Kim returned to the house with four local police officers who met Edward outside on the back porch.</p> <p>The police and Edward chatted, and he confirmed the previous day's events. The police then called an ambulance and ordered Edward to get into it to be taken to a hospital for a psychiatric evaluation.</p> <p>Edward agreed to go only if the police agreed not to enter his house and not to seize his firearms. The police agreed to both conditions. Yet, as soon as the ambulance and Edward were gone, the police entered the house and seized Edward's guns. The hospital sent Edward home with a clean bill of mental health.<p>Updated: Thu May 27, 2021</p> 912a357a48e6c0d0049354bc3f58c4f0 The Government's Emergency Powers Myth for 05/20/2021 https://www.creators.com/read/judge-napolitano/05/21/the-governments-emergency-powers-myth Thu, 20 May 2021 00:00:00 -0700 <p>"<i>The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.</i>" &#8212; Ex Parte Milligan, Supreme Court of the United States, 1866.</p> <p>Last week, the media in New Jersey began to ask Gov. Phil Murphy when he would surrender his emergency powers. He claimed emergency powers in March 2020, and he also claimed that those powers are not limited by the Constitution when he said on Fox that the Bill of Rights is above his pay grade. His reply to the media inquiries was that he will surrender them when he surrenders them!</p> <p>I am using the example of Murphy in order to address the concept of emergency powers, but there is no hyperbole here. Murphy quite literally issued executive orders barring folks from doing what the Constitution guarantees them the right to do, and he imposed criminal penalties for violating his orders, and he had folks who defied him arrested and prosecuted. Stated differently, he assumed the powers of the state legislature &#8212; which is to write the laws &#8212; and he violated his oath to uphold the Constitution.<p>Updated: Thu May 20, 2021</p> 449c2225a82a321d225ad58a37234fd5 Can Federal Judges Alter the Constitution? for 05/13/2021 https://www.creators.com/read/judge-napolitano/05/21/can-federal-judges-alter-the-constitution Thu, 13 May 2021 00:00:00 -0700 <p>"<i>No person shall be... deprived of life, liberty, or property without due process of law</i>." &#8212; Fifth Amendment to the U.S. Constitution</p> <p>Last year, a detainee at the U.S. Naval Base at Guantanamo Bay, Cuba, filed a writ of habeas corpus in a federal district court in Washington, D.C. &#8212; to which all cases from Guantanamo have been assigned &#8212; and it was denied because he was not in the United States. </p> <p>A writ of habeas corpus is the ancient individual right of every person confined by the government to require the government to justify the confinement under the law to a neutral judge. That right is guaranteed by the Constitution. This is so because the framers, who knew of summary incarceration by British authorities, made certain that the new government here could not treat any persons as the British government had treated the colonists.<p>Updated: Thu May 13, 2021</p> b122b73038ebcb323558f3b72ac2ce22 More Government Spying and Lying for 05/06/2021 https://www.creators.com/read/judge-napolitano/05/21/more-government-spying-and-lying Thu, 06 May 2021 00:00:00 -0700 <p></p><p>Twice last week, the federal government's unconstitutional spying on ordinary Americans was exposed. One of these revelations was made by a federal judge in Washington, D.C., who wrote that the FBI is still using warrantless spying in criminal cases, notwithstanding the Constitution and federal laws. The other revelation was a surprise even to those of us who monitor these things &#8212; the United States Postal Service acknowledged that it has been spying on Americans.</p> <p>Here is the backstory.<p>Updated: Thu May 06, 2021</p> 637b0ff4892e03c8ca0370a3c7cc54a5 Unconstitutional Debt and Future Generations for 04/29/2021 https://www.creators.com/read/judge-napolitano/04/21/unconstitutional-debt-and-future-generations Thu, 29 Apr 2021 00:00:00 -0700 <p>Earlier this week, President Joseph R. Biden Jr. asked Congress to raise taxes and increase borrowing so his administration can spend $2.3 trillion &#8212; on top of the $1.9 trillion Congress authorized two months ago for so-called COVID relief &#8212; for thousands of projects he calls "infrastructure." All this is in addition to the $2 trillion that the government borrows annually these days just to make ends meet.</p> <p>These are serious numbers of dollars, the repayment of which will have seriously unpleasant consequences for future generations of Americans. Indeed, under Biden's administration, the feds will borrow three times what they collect in taxes. This is not a new phenomenon, but it exacerbates the modern trend of spend now and pay later.</p> <p>Under the Constitution, can the feds borrow as much as they want and can they spend it on anything they want? Here is the backstory.<p>Updated: Thu Apr 29, 2021</p> 6f712374e476c91d8fe645337b1b25d9 Big Tech and Free Speech for 04/22/2021 https://www.creators.com/read/judge-napolitano/04/21/big-tech-and-free-speech Thu, 22 Apr 2021 00:00:00 -0700 <p></p><p>A colleague recently asked me if I approved of Big Tech censoring political and cultural voices on their platforms. My colleague believes &#8212; as do I &#8212; in natural rights, minimal government and that owners of private property can use it as they see fit. We both condemned the Big Tech censorship. Then he asked if the government could regulate these platforms. I offered that it could not.</p> <p>These questions arose from the reported efforts by Facebook to bar from its platforms those who wish to offer scientific, political or cultural arguments against mass vaccinations. Many of these arguments are sound and fascinating. Nearly all are provocative. They are the essence of free speech. Should those who offer them be silenced on a platform used by billions of folks?<p>Updated: Thu Apr 22, 2021</p> 5639816f861017de7fb53ac134b25d12 Joe Biden and Guns for 04/15/2021 https://www.creators.com/read/judge-napolitano/04/21/joe-biden-and-guns Thu, 15 Apr 2021 00:00:00 -0700 <p></p><p>"<i>A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed</i>." &#8212; Second Amendment to the U.S. Constitution.</p> <p>President Joseph R. Biden Jr. recently announced his determination to use his powers as the chief executive of the federal government to infringe upon the right to keep and bear arms. This is a profound violation of his oath to uphold the Constitution.<p>Updated: Thu Apr 15, 2021</p> 955f20ca6d97a6ada269642f788ad263 The Tyranny of the Majority for 04/08/2021 https://www.creators.com/read/judge-napolitano/04/21/the-tyranny-of-the-majority Thu, 08 Apr 2021 00:00:00 -0700 <p></p><p>"<i>Which is better &#8212; to be ruled by one tyrant three thousand miles away, or three thousand tyrants one mile away?</i>" &#8212; Rev. Mather Blyes (1706-1788)</p> <p>Does it really matter if the instrument curtailing liberty is a monarch or a popularly elected legislature? This conundrum, along with the witty version of it put to a Boston crowd in 1775 by the little-known colonial-era preacher with the famous uncle &#8212; Cotton Mather, addresses the age-old question of whether liberty can survive in a democracy.<p>Updated: Thu Apr 08, 2021</p> 042cadaeb238b4920b5f90327bd9d074 Hope for the Dead for 04/01/2021 https://www.creators.com/read/judge-napolitano/03/21/hope-for-the-dead-3c87e Thu, 01 Apr 2021 00:00:00 -0700 <p></p><p><i>That God, which ever lives and loves,</i></p><i> <p>One God, one law, one element,<p>Updated: Thu Apr 01, 2021</p> 831c42d437e20710e75b4a074ae83ef4 Who Will Keep Our Liberties Safe? for 03/25/2021 https://www.creators.com/read/judge-napolitano/03/21/who-will-keep-our-liberties-safe Thu, 25 Mar 2021 00:00:00 -0700 <p>What if liberty and democracy are opposites? What if the principle underlying liberty is to restrain the government to maximize individual autonomy? What if the principle underlying democracy is to unleash the government to give the people whatever they want?</p> <p>What if personal liberty is an individual birthright because we are created in the image and likeness of God? What if just as God is perfectly free, we are perfectly free? What if our personal liberties are integral to our humanity? What if personal freedom &#8212; which we are free to abuse &#8212; is God's greatest gift, after life itself? What if, without freedom, we would not be fully human but subservient to whomever or whatever took our freedoms away or persuaded us to surrender them?</p> <p>What if government is essentially the negation of liberty? What if some liberties should be negated? What if those liberties that should be negated consist of the liberty to violate the natural rights of others by taking their lives, liberties and properties? What if government does this every day because it wants to tell us how to live? What if no one consented to a government that takes property and freedom from the people it governs?<p>Updated: Thu Mar 25, 2021</p> 87a02a90c3db10c92bdd01861214fb90 The Coming War on Privacy for 03/18/2021 https://www.creators.com/read/judge-napolitano/03/21/the-coming-war-on-privacy Thu, 18 Mar 2021 00:00:00 -0700 <p>When Attorney General Merrick Garland was asked at his confirmation hearings earlier this month what his priorities would be if confirmed, he responded immediately that it would be a vigorous pursuit of domestic terrorism. He did not say he would lead vigorous prosecutions, just vigorous pursuits.</p> <p>This is dangerous business for the Department of Justice because it transforms its role from prosecuting crimes after they happen to predicting who would commit crimes that never happen.</p> <p>How could the feds predict crimes? They would attempt to do so by a serious uptick in domestic surveillance of broad categories of people based on political and ideological views. The government loves to cast out fishing nets &#8212; so to speak &#8212; and then intimidate or prosecute whomever they bring in.<p>Updated: Thu Mar 18, 2021</p> d0f9f2d5bf0cd5c0b0d6b4817a65bdd5 The Power to Make War for 03/11/2021 https://www.creators.com/read/judge-napolitano/03/21/the-power-to-make-war Thu, 11 Mar 2021 00:00:00 -0800 <p>Two weeks ago, while the House of Representatives was finalizing its 700-page legislation authorizing the Treasury to borrow and spend $1.9 trillion in the next six months, and the Senate was attempting to confirm more of President Joseph R. Biden's cabinet nominees, Biden secretly ordered the Pentagon to bomb militias in Syria.</p> <p>The United States is not at war with Syria. It is not at war with the militias that were bombed, and it didn't seek or have the permission of the Syrian government to enter its air space and engage in deadly military activities. Biden later claimed that the bombing was conducted as "a lesson to Iran," another country with which the U.S. is not war.</p> <p>His campaign promises to the contrary notwithstanding, Biden has followed in the footsteps of his immediate predecessors. They bombed civilians in an aspirin factory in Kosovo (Clinton), bombed civilians in Iraq (G.W. Bush), bombed military targets and government buildings in Libya and bombed a cafe in the Yemen desert targeting an American who was having tea (Obama), bombed the same location as Biden in Syria, and bombed a convoy of trucks in Iraq targeting an Iranian general who was on his way to lunch with an Iraqi counterpart (Trump).<p>Updated: Thu Mar 11, 2021</p> 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>