JLS JV

L IBERTARIAN S TUDIES
20, NO. 3 (SUMMER 2006): 97102

OURNAL OF
OLUME

Constitutional Chaos: What Happens When the Government

Breaks its Own Laws. By Andrew P. Napolitano. Nashville,
Tenn.: Nelson Current, 2006.
A COUPLE OF MONTHS ago, I received a package in my office mailbox.
When I opened it, I found the new book Constitutional Chaos, by
Judge Andrew Napolitano, who is the chief legal analyst for Fox
News. Having been familiar with Napolitanos views on the law
and finding them compatible with mineI was quite happy to
receive it.
Of course, since I had not ordered the book, I was wondering who
would have sent it. Opening the book, I soon found out: the book was
a gift from the author himself. At that moment, I realized that some of
the things I have written about lawalong with my writing partner
Candice E. Jacksonhave been able to make it outside the usual circle of libertarians with whom I regularly communicate.
That mystery being solved, I quickly took to reading it, and found
that Napolitano does not disappoint. Here is a man who has worked
as a judge who insists that rule of law matters, and it matters greatly.
After reading Constitutional Chaos, I would recommend that people also read The Tyranny of Good Intentions by Paul Craig Roberts
and Lawrence M. Stratton. My reasoning is that while Napolitano
writes from a foundation of natural lawwhich reflects the Roman
Catholic tradition of which the author is a partRoberts and
Stratton emphasize the influence of William Blackstone and the
Rights of Englishmen. Both streams of thought are wonderfully
compatible, and they created the backbone of a legal system that
once was the envy of the world. Unfortunately, as Napolitano alltoo-aptly demonstrates, the rule of law has evaporated into the rule
by the law-breaking political classes.
Napolitanos style is somewhat folksy but incisive. Take his
opening statements, for example:
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. (p. ix)
97

98 JOURNAL OF LIBERTARIAN STUDIES 20, NO. 3 (SUMMER 2006)

In this simple and straightforward manner, he then proceeds to

demonstrate how government officials at all levels routinely violate
the law, commit felonies, lie, use torture and other illegal methods to
extract confessions from innocent people and generally act in a manner so cynical as to destroy the confidence that any of us could have
in the law. Furthermore, he is not afraid to name names. Janet Reno,
he says, should have been indicted for nearly ninety counts of murder (p. 108). U.S. Department of Justice prosecutors who forced
guilty pleas from the so-called Lackawanna Six should have been
indicted (p. 149). Instead, as he sadly points out, they were given
honors and awards from their employer.
A few more zingers should convince the reader that Napolitano
means business:

Attorney General John Ashcroft doesnt seem to have

much use for the First Amendment. (p. 92)

As the state attorney for Dade County, Florida, Janet

Reno made a name for herself by prosecuting innocent
people so that they could rot in prison for crimes they
did not commit. (p. 27)

Rather than condemning the illegal actions of his corrupt attorney general, Bill Clinton praised Janet Reno.
(p. 116)

As a result of pressure from President Bill Clinton and

FBI Director Louis Freeh, FBI sniper Lon Horiuchi got
away with murder. Horiuchi, who illegally shot Weaver
and then proceeded to murder Weavers wife, never
even had to stand trial. (p. 120)

This comes from a man who entered a state judgeship in New

Jersey as a self-described law-and-order Republican and emerged
as a man who understood that government was assaulting liberty at
every turn. A present-day supporter of the ethos of the Republican
Party could not have written the following words:
Many of my fellow conservatives have welcomed reposing this
kind and amount of power into President Bushs hands. He is a
good man, they tell me, big-hearted, clear-headed, modest, honest,
and trustworthy. I, too, believe he is. But we are a nation of laws,
not men, and no president is president forever. Would my friends
agree to have given these king-like powers to President Bushs
predecessor, or to one of his successors, especially if she has the
same last name as the predecessor? (p. 164)

BOOK REVIEWS 99

Napolitanos first chapter is entitled Breaking the Law to

Enforce It, and he starts out swinging:
Amazingly, infuriatingly, incredibly, the government will lie, cheat,
and steal in order to enforce its own laws. And the courts continually give law enforcement a free pass to engage in these practices.
(p. 1)

He begins with the case of Frisbie v. Collins in 1952, in which

police in Chicago, at the request of police from Flint, Michigan, kidnapped and beat Shirley Collins into unconsciousness, then transported him across state lines to Flint. No Michigan authorities had
made an extradition request, but the U.S. Supreme Court ruled that
no one violated Collinss right to due process.
Yes, Collins was accused of committing murder, but even murderers are due protection under the U.S. Constitution. In fact,
Napolitano goes on to deal with accused drug dealers, alleged members of the Mafia, and even terrorism suspects to point out that when
the government fails to follow its own laws giving the accused due
process respecting their rights, none of us is safe. In case after case,
he points out how government agents repeatedly broke the law, yet
the courts did nothing and in many cases sanctioned the lawbreaking.
During his own term as a state judge, Napolitano was on the
lying end of police testimony. In one particularly egregious case, he
recounts how two state police officers trying to pass themselves off
as Mafiosi continually demanded protection money from a Sicilian
immigrant who owned a small restaurant. After he continually
rebuffed their advances, they threatened him with murder and told
him that the next time they came to the restaurant, he had better have
a gun for protection.
Soon afterwards, they showed up and demanded to see a gun.
He pulled out a borrowed handgun, and was then arrested for illegally possessing the weapon. When the man appeared in court,
Napolitano asked the officers if they had concocted the scheme on
their own, or were they ordered to do so from supervisors. After the
police refused to answer, he dropped the charges against the restaurant owner.
Indeed, Napolitano has almost no use for police entrapment
schemes. He recalls walking through Washington Square in New York
City following a Sunday mass and being accosted by undercover
police officers wanting to sell him marijuana. After he refused, one of
the officers flipped up his NYPD badge and said, Have a good day,
your honor.
Calling the practice of entrapment a perversion of the policing
function, Napolitano gives case after case in which innocent people

100 JOURNAL OF LIBERTARIAN STUDIES 20, NO. 3 (SUMMER 2006)

are caught up in police stings and other attempts by the government

to create crime where none was being committed in order to give the
impression that police are protecting people. From bogus drug
schemes to using cameras to photograph cars that run through red
lights (after authorities have tinkered with the mechanism to give a
short yellow light), governments are victimizing innocent people in
order to fill up prisons and government coffers with fines.
He also takes aim at the government for its attempts at gun control. He writes convincingly:
The right to possess arms is a fundamental human right. This right
is guaranteed in the Second Amendment. . . .
Contrary to popular political beliefs, the right to possess a firearm
has little to do with hunting or any other recreational activity. The
basic right to possess a gun serves a much more important function
in our society: self-defense. The right has two purposes: It allows
individuals to protect themselves from criminals when the government is unable to protect them. Even more importantly, the right
exists so that individuals can protect themselves from the government when it unjustly attacks them. (Emphasis in original, p. 50)

Napolitano recognizes that the right to own firearms is an individual, not a bogus collective right, as has been interpreted by the U.S.
Supreme Court since its infamous Miller decision in 1939. Not only is
the government satisfied with criminalizing the mere ownership of
guns, but it also actively prosecutes individuals who legitimately
defend themselves and their property from criminal attacks. He ends
his chapter on gun control with this chilling statement:
Constitutional chaos and loss of innocent life: Thats what happens
when the government violates the Constitution. Just think what
might have been avoided if law-abiding Americans had been
armed on those ill-fated planes on September 11th 2001. (p. 64)

There is more, much more in this wonderful book. Napolitano

goes after governments that use eminent domain to confiscate private property on the cheap and then sell to private firms, all in the
name of increasing tax revenues. After giving numerous examples
of how governments abuse individuals through eminent domain
procedures, he writes, On a daily basis, the government can be
found plotting to violate the Constitution in order to take away your
land (p. 75).
As he continues to build his case against the modern criminal
state, he takes on the Ruby Ridge and Waco attacks, and he writes
clearly and forcefully:

BOOK REVIEWS 101

She ordered her agents to inject poisonous gas into a building, after
using armored tanks to raid and destroy the building. When the
building caught on fire, her agents shot and killed people who tried
to save their own lives by fleeing the flames. She refused to allow
the fire department to rescue those trapped inside. In the end,
eighty-six innocent men, women, children, and babies died from
the cyanide poisoning, the bullets, and the tanks. Most were
reduced to ash. (p. 108)

The Waco/Ruby Ridge chapter outlines the many crimes of Janet

Reno, who was feted as a hero after the deadly attack on the Branch
Davidian site. He also deals with the crimes committed by the FBI
and the ATF at Ruby Ridge, saying that being a federal official
means you have a license to killor at least immunity from a prosecution for murder (p. 122).
His last section deals with the governments so-called war on terror, and again he takes the side of liberty. Napolitano is willing once
again to take the side of people who presently are unpopular in our
society or who are willing to stand up for people who are seen as
enemies of the people. Thus, he stands up for Lynne Stewart, the
lawyer for Sheikh Omar Abdel Rahman, who was one of the conspirators behind the 1993 World Trade Tower attacks.
Whatever one might think of Rahman, he is due a defense and a
vigorous one at that, but by convicting Stewart of specious charges,
the government demonstrated that its continuing war against
defense lawyers is nothing less than an all-out assault on the few
constitutional liberties that remain. From the bogus charges against
Brandon Mayfield, who was falsely accused of aiding the Madrid
train bombers of March 11, 2004, to the governments attempts to
impose a regime of secret trials of those accused of being involved in
terrorism, Napolitano makes it clear that the governments
actionstaken ostensibly to protect the rest of us from being victims of terrorismare a form of totalitarian terror themselves.
His last chapter, What Can We Do? outlines some strategies
including sue the bastards, and for the rest of us to defend the
Constitution, since those who pledge under oath to protect and
defend the Constitution of the United States of America are the
people who are most likely to rip the document to shreds. As
Thomas Jefferson once put it, the moment the government becomes
the final arbiter of constitutional rights, the Constitution is not worth
the paper on which it is written.
Unfortunately, while Napolitanos words cut to the heart of the
matter, the prospects for a return to the rule of law are bleak. Yet,

102 JOURNAL OF LIBERTARIAN STUDIES 20, NO. 3 (SUMMER 2006)

even if that is the case, it is heartening to know that people like

Napolitano are out there, and that they speak with authority and
purpose. And there is nothing wrong with raising a little bit of hell
in the process.
William L. Anderson
Frostburg, Maryland