Book Review: Constitutional Chaos
By Scott Editor | More Book Reviews
May 03, 2005

"...the government will lie, cheat, and steal in order to enforce its own laws."

So says Judge Andrew Napolitano anyway, the senior judicial analyst at Fox News Channel. Napolitano, or just "Judge" as the anchors of the most popular cable news network call him, makes a call to arms in his new book: Constitutional Chaos: What Happens When The Government Breaks Its Own Laws.

This alarming read has endorsements by the big names such as Bill O'Reilly, Rush Limbaugh, and Ken Star. But don't let that mislead you, Napolitano is no Republican. He explains in his intro: "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…"

And as an individualist Napolitano argues that the government can't be trusted and you should be every bit as skeptical because your freedom is at stake. The remedy for such an untrustworthy government is an independent judiciary, but the courts are still part of the government and have unfortunately been unreliable and all too willing to cave in to the pressures of Congress and the President, specifically the administration's handling of the war on terror.

While you might assume Napolitano's philosophy on the government's role in society echoes conservative thinking, he more often than not sides with the liberal justices on the current Supreme Court in a slew of cases he summarizes. Because the current Supreme Court is made up of mostly moderate to hard-right conservatives, the opinions Napolitano often agrees with is found in the minority writings.

In the first chapter Napolitano sides with dissenting opinions in two cases, specifically citing Justices Stevens and Souter who both remarked how the majority once overstepped their authority by allowing law enforcement agents to illegally search and detain suspects. In some cases the government goes as far as to kidnap citizens in order to try them, as was the situation when American authorities wanted to try a Mexican citizen and had agents of the bordering nation to the south bring him to the United States against his will.

A topic that gets a great deal of attention in the book is the United States' drug laws and how the enforcement of them often impedes the rights spelled out for us in the Constitution. The writing of the laws grants the government authority to "read minds" when determining how to charge suspects. For example, if a drug possessor has x amounts of a certain drug, then he must have the intent to distribute. Even if the suspect is found alone and there's no concrete evidence suggesting he plans to sell his drugs, the fact that he has an amount greater than what the government deems reasonable for one person to consume is satisfactory grounds for proving beyond a reasonable doubt that he had intentions to sell or distribute the narcotics.

Napolitano points how the government rewards police officers for making drug arrests regardless of whether or not they turn into convictions. Because of the current system, law enforcement officials are encouraged to arrest as many drug suspects as possible, and because actual convictions don't matter, police have no reasons or motives to ensure that their arrests are legitimate or even legal.

Napolitano shares a few personal stories from the bench, and he resolves each case suggests he is in fact not a conservative. The question is whether a curious liberal would give the book a chance after skimming through the Acknowledgements wherein he thanks Fox News' CEO Roger Ailes for giving him the opportunity to work at Fox and build an audience for the book.

In one amusing story Napolitano explains why he threw out a case involving a suspect who was arrested for cocaine possession. As it turns out the stash of cocaine was found by illegally by a police officer. During a routine confrontation a police officer did a legal pat-down of the suspect; a procedure that is done only to detect weapons and items that will be used to assault the officer. When the cop believed he felt a brick that was going to be used against him, he removed the object and found a bag of cocaine. Suspicious of how a cop could feel a small bag of cocaine and assume it was a brick, Napolitano conducted a test from the bench - and as a result, "cocaine spewed all over me, including on my hair, face, eyebrows, and robe."

In that case and many others Napolitano explains, the suspect did in fact possess illegal narcotics but police went about the wrong way finding them and when constitutional rights are broken the defendant must not be convicted of any crimes as a result of bad procedure. Continuing on his criticisms of drug laws, Napolitano talks about how the government has a history of engaging in entrapment because they are desperate to make drug arrests. One law enforcement officer in Texas made a sweeping arrest of forty-six people and told a jury that he purchased cocaine from them as an undercover agent. It turns out that the cop fabricated most if not all the incidents and faced no discipline from the department. To add salt to the wound, the dirty cop was decorated by Republican Senator John Cornyn. This pattern of rewarding bad policing turns up in other chapters as well, covering topics outside of drug enforcement.

One egregious case was about an agent for the Federal Bureau of Narcotics and Dangerous Drugs who actually provided a suspect with materials to manufacture methamphetamine just so he could arrest him. Napolitano argues that the man would have otherwise never have been able to manufacture the drug without assistance from the federal government. Surprisingly, the Supreme Court validated the procedure, and Napolitano once again turned to a dissenter for reason. Justice Potter Stewart wrote, "It's the government's duty to prevent crime, not promote it. Stewart, a conservative maverick on the Court, is widely known for his part as an affirming justice in the infamous Roe v. Wade case.

On the flipside it was Justice Rehnquist with whom Napolitano had a problem, and criticizes him in the book for writing that the suspect would have committed the crime without the assistance of the federal agent. Sounds pretty far-reaching for one of the Court's most conservative members.

Aside from drug laws Napolitano covers a wide range of issues from the government's refusal to acknowledge the true meaning of the Second Amendment and the individual right to bear arms, to the use of spy cameras at traffic intersections.

Napolitano accuses the government of selling out to private companies when it comes to using law enforcement cameras that catch motorists running red lights. With the exception of one judge who threw out citations involving the cameras, Judge Ronald Styn, the practice of using artificial intelligence to write traffic tickets has become an accepted practice in the courts. The biggest problem with this is that private companies such as Lockheed Martin use the profit-motive to design their systems that catch and fine as many people as possible.

Other stories that have never caught the attention of the mainstream media include one where the government committed numerous crimes in order to get a farmer with interests in child pornography to commit just one crime; the act of receiving child pornography by mail. The kicker is that the porn was a creation of the government, including the U.S. Post Office.

Typical cases include one where a federal agent impersonated a 14-year-old girl on the Internet and engaged in conversations with a potential suspect. After an arrangement was made between the agent and the 47-year-old suspect, the arrest was made when they met at the meeting spot.

That is just one example of entrapment the government is willing to use on the public in order to elicit criminal behavior. One of the most alarming examples of entrapment occurred when federal agents posing as terrorists on the Internet coerced a member of the National Guard to reveal military secrets that would eventually be used to try him for "attempted treason" and give him a life sentence. A life sentence!

As a narrow interpreter of the Constitution, Napolitano leaves little wiggling room. A widely accepted practice, when a prosecutor offers a jailed witness a reduced sentence in exchange for testimony against another defendant on trial, is a violation of criminal law that prohibits the "buying" of testimony. According to Napolitano, it is illegal to encourage anybody to testify with such perks as reduced sentences because that is no different than "buying" testimony.

Despite the several actions of government committing crime to prosecute crime, Napolitano doesn't quite voice strong disdain until he gets into the reckless actions of the Clinton administration and Attorney General Janet Reno. Napolitano cites several instances of abuse on the part of Reno as the top law enforcer in the country, and believes she should have been charged for her involvement in falsely accusing suspects of sexually abusing children in Florida, among other debacles.

His rhetoric on Reno eventually becomes so strong that it's the weakest part of the book, because it reduces him to a ranting talking head against certain political figures that you would expect in a book by Limbaugh or Savage. Napolitano's tongue gets the most acidic when discussing the Elian Gonzalez controversy, saying Reno probably "jumped for joy, knowing that Elian would be raised under another government whose top officials disregarded the rule of law and even murder and kidnap innocent children."

Save for that one exception, Napolitano's case against Reno is pretty strong, especially when he goes over the details of the botched Waco incident that left eight-six people dead, most of whom were innocent women and children - all because Reno's Justice Department wanted to slap David Koresh with meaningless weapons charges.

Another outrageous tragedy that happened because the government felt like giving people a hard time over weapons technicalities occurred at Ruby Ridge: the home of Randy Weaver and his family. The FBI and U.S. Marshals ran a deadly sting operation that left one federal agent dead as well as Weaver's wife and son.

For all the problems listed, Napolitano offers few practical solutions to remedy the chaos. Sure, we could "sue the bastards" but most of the corrections must come from within the government. It has to apply the laws to everyone, defend the Constitution and enforce the laws properly. Because these are elements largely out of our hands, Napolitano's book serves mostly as a reference to all the situations where the government has failed. And since an informed public is a step in the right direction, the book serves a great purpose. After reading Constitutional Chaos I began to wonder if Bill O'Reilly had done so, as he says in his praise that the book "will open your eyes" and answer the question of the government taking away our rights. O'Reilly is a tested supporter of the Patriot Act and aggressive tactics against suspected terrorists, while Napolitano completely writes off Guantanamo Bay as an illegal gambit to hold terror suspects indefinitely without bringing forth charges.

That's the main essence of Constitutional Chaos. The Constitution must be defended regardless of the current state of the country. Is it worth sacrificing a little freedom to ensure a little safety. Napolitano -- to my pleasing -- says no.

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