Andrew P. Napolitano - Constitutional Chaos: What Happens When the Government Breaks Its Own Laws

2004 by Andrew P. Napolitano

All rights reserved. No portion of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any meanselectronic, mechanical, photocopy, recording, scanning, or otherexcept for brief quotations in critical reviews or articles, without the prior written permission of the publisher.

Published in Nashville, Tennessee, by Thomas Nelson. Thomas Nelson is a trademark of Thomas Nelson, Inc.

Thomas Nelson, Inc. titles may be purchased in bulk for educational, business, fund-raising, or sales promotional use. For information, please e-mail SpecialMarkets@ThomasNelson.com.

Chapter Six is adapted from the authors comprehensive analysis of First Amendment juris-prudence, Whatever Happened to Freedom of Speech? A Defense of State Interest of the Highest Order As a Unifying Standard for Erratic First Amendment Jurisprudence, 29 Seton Hall Law Review 1197 (1999), which is available in its entirety at http://law.shu.edu/journals/ lawreview/ library/29_4/nap.pdf, or from Westaw and Lexis/Nexis.

Library of Congress Cataloging-in-Publication Data

Napolitano, Andrew P.
Constitutional chaos : what happens when the government breaks its own laws / Andrew P. Napolitano.
p. cm.
Includes index.
ISBN 978-0-7852-6083-7 (HC)
ISBN 978-1-5955-5040-8 (TP)
1. Justice, Administration ofCorrupt practicesUnited StatesHistory. 2. Criminal justice, Administration ofCorrupt practicesUnited States. 3. Police corruptionUnited States. 4. Judicial powerUnited States. 5. Constitutional lawUnited StatesMoral and ethical aspects. 6. Civil rightsUnited States. 7. War on Terrorism, 2001Moral and ethical aspects. I. Title.
HV9950.N365 2004
345.73'052dc22

2004020596

Printed in the United States of America

07 08 09 10 11 QW 6 5 4 3 2

Dedicated to

THOMAS MORE

Lawyer, Judge, Scholar, Chancellor of the Realm, Martyr, Saint.
Murdered by the Government
Because he would not speak the words
That the King commanded.

The nine most terrifying words in the English language are: Imfrom the government and Im here to help.

PRESIDENT RONALD REAGAN

Lady Alice More: Arrest him!

St. Thomas More: For what?

Lady Alice More: Hes dangerous!

William Roper: For all we know hes a spy!

Margaret More: Father, that mans bad!

St. Thomas More: Theres no law against that.

William Roper: There isGods law!

St. Thomas More: Then let God arrest him.

Lady Alice More: While you talk hes gone!

St. Thomas More: And go he should, if he were the Devil himself,until he broke the law.

William Roper: So, now you give the Devil the benefit of law!

St. Thomas More: Yes! What would you do? Cut a great roadthrough the law to get after the Devil?

William Roper: Yes, Id cut down every law in England to do that!

St. Thomas More: Oh? And when the last law was down, and theDevil turned round on you, where would you hide, Roper, thelaws all being flat? This country is planted thick with laws,from coast to coast, Mans laws, not Gods! And if you cut themdownand youre just the man to do it!do you really thinkyou could stand upright in the winds that would blow then? Yes,Id give the Devil benefit of law, for my own safetys sake!

ROBERT BOLT,

A Man for All Seasons

CONTENTS

PART 1:
RIGHTS AND LIBERTIES

PART 2:
WAKE-UP CALL

PART 3:
THE HARD TEST: THE WAR ON TERROR

PART 4:
PROSPECTS FOR LIBERTY

INTRODUCTION
BREAKING THE LAW

It should be against the law to break the law. Unfortunately, it is not.

In early twenty-first century America, a long-standing dirty little secret still exists among public officials, politicians, judges, prosecutors, and police. The governmentfederal, state, and localis not bound to obey its own laws. I know this sounds crazy, but the events recounted in this book prove it true. Constitutional Chaos should be a wake-up call for every American who prizes personal liberty in a free society.

FRIEND NO MORE

Because it breaks the law, the government is not your friend.

When I arrived on the bench, I had impeccable conservative Republican law-and-order credentials. When I left eight years later, I was a born-again individualist, after witnessing first-hand how the criminal justice system works to subvert and shred the Constitution. You think youve got rights that are guaranteed ? Well, think again.

Because the government breaks the law and denies it, the government is not your friend.

Eternal vigilance is the price of liberty, particularly when it comes to the American criminal justice system. Nowhere else does the state have greater raw power over an individuals life, liberty, and property. And nowhere else are our constitutionally guaranteed rights and freedoms under such a relentless, subtle, and ultimately devastating attack.

Because the government breaks the law and hides it, the government is not your friend.

The deck is grossly stacked in the governments favor. No wonder, as a recent New York magazine cover story put it, referring to the governments long winning streaks in criminal trials, The Defense RestsPermanently. No wonder that in 2003, fewer than 3 percent of federal indictments were tried; virtually all the rest of those charged pled guilty.

I know that you, like me, are concerned about what it means to be an American. Well, one thing I can tell you is that being an American means having certain rights, liberties, and personal freedoms guaranteed by the Constitution and the Bill of Rights. Thats what it has always meant, and thats what it will continue to mean in these troubled times before us.

Most of us take these guaranteed rights and liberties for granted. Most of us live comfortable lives that never bring us into conflict with the criminal justice system. But in many ways, thats a bad thing, for if you had seen that system as I did, you would never take your guaranteed rights for granted again.

I am not fighting phantoms of lost liberties. I am talking about the things that the government does every day.

For example, even though the Constitution, through the First Amendment and Fourteenth Amendment, commands that neither the federal government nor the state governments can abridge the freedom of speech, you will see shortly that the government regularly prosecutes Americans for speaking freely and punishes them when they say things that the government doesnt want to hear. Despite the governments duty to use its power to protect us, you will see how the federal and state governments have failed to protect us and have enacted laws which make it impossible for us to protect ourselves. Despite the governments obligation to protect us from crime, you will learn that the government actually creates crime by setting traps for the ignorant, the nave, the criminally inclined, and those it hates. Despite the protections from governmental abuse in the Fifth and Fourteenth Amendments, you will learn that the government literally breaks the law in order to enforce it, that it prosecutes people it knows to be innocent, that it seizes property from unwilling citizens and pays bargain basement prices for it only to flip that property to developers who earn a fortune on it. Despite the Constitutions promise of a presumption of innocence and a full and fair trial, in one of the more scandalous excesses of law enforcement, I have examined the governments behavior in bribing its own witnesses. If this bribery were done by defense counsel, it would no doubt result in the lawyer and the witness serving long jail terms.