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Dangers Are Coming to the Rule of Law
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Amid the bad news this summer of racial tensions in Charlottesville and biblical-like floods in Houston and preening saber rattling between Pyongyang and Washington, a dangerous below-the-radar trend has been developing about which all who believe that the Constitution means what it says should be concerned. It is the reckless influence upon local law enforcement coming from the Trump administration.

Here is the back story.

When the states joined the union, they gave certain powers to the federal government, and they kept others to themselves.

The powers surrendered are articulated in the Constitution, and the 10th Amendment clarifies the truism that those powers not surrendered have been retained.

The traditional terminology for the powers retained is the “police power.” The police power does not refer to police as in cops on the streets, but it does refer to states’ powers to make laws and policies that are often enforced by cops on the streets.

In constitutional parlance, police power is the right and obligation of each state to legislate for the health, safety, welfare and morality of people in the state.

This is basically what state governments — and local governments with the approval of their state governments — do. And it is basically what the Constitution was written to prevent the federal government from doing.

Those who wrote, ratified and amended the Constitution all took pains to keep the police power out of the hands of the federal government for several reasons. One was federalism. The states are sovereign entities, 13 of which are older than the federal government. By retaining the police power in the states, the Constitution’s drafters provided a check — a limitation — on the reach of the federal government.

A second reason for retention of the police power in the states is what President Ronald Reagan whimsically called voting with one’s feet. He meant, of course, that since we all have the natural right to travel — to leave a geographical area that has a government we reject — we can go to a state more to our liking.

If you don’t like the taxes in New Jersey, you can move to Pennsylvania. If you don’t like the regulations in Massachusetts, you can move to New Hampshire. You can see the simplicity and constitutional beauty of his argument.
Yet the federal government — notwithstanding which political party is in power — has repeatedly found ways around these profound constitutional principles.

One way has been to use the commerce clause, which empowers Congress to regulate interstate commerce, to regulate anything that might affect interstate commerce — from the wheat a farmer grows only for his family’s own use to legal marijuana a pain-ridden patient grows only for her own use to countless items that never leave their state of origin or are not commercial in nature.


Another way for the federal government to reach into and control state and local behavior is by legalized bribery. For example, Congress cannot regulate highway speed limits or the minimum blood alcohol content sufficient to trigger DWI prosecutions, but it can offer the states cash to pave highways in return for the states imposing the congressional will on vehicle speeds and on DWI triggers.

And the courts have upheld this — effectively telling the states that if they want the federal cash, they must accept the federal strings attached. Because the states are all cash-strapped — and Congress knows that — the states always take the cash and the strings.

Now back to the troubling trend this summer. The Department of Justice last month told local police in states that prohibit the seizure of a criminal defendant’s assets before conviction that the police can just ignore these state prohibitions and follow the looser federal rule — which does permit seizure of assets before trial, while the defendant is still innocent — and the feds will share the seized assets with the local police who have seized them.

This is another example of federal bribery of state officials, although as yet untested in the courts.

This past week, the DOJ also announced it will be offering to local police vast amounts of surplus military equipment — much of it new, fearful and lethal — from body armor to listening devices to battle tanks.

If police begin to look like soldiers and carry soldiers’ gear in soldiers’ vehicles, will they begin to think like soldiers, whose goal is not to win hearts and minds and keep streets safe but to destroy the lives and property of the enemy in wartime?
Moreover, the strings attached to this federal hardware giveaway do not require congressional or even local government approval. They require only acceptance by the police and regular local use of the military equipment. Local police should not have this discretion and should not be subjected to this temptation.

Add to all this the recent DOJ threats to prosecute physicians and their patients who lawfully prescribe and use medicinal marijuana, President Donald Trump’s personal advice to cops to hate and be rough with certain violent but untried suspects, and his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.

Those principles require adherence to the rule of law. And the rule of law mandates that police be local but subject to the Constitution and federal and state laws like everyone else. And it requires fidelity to the Constitution by those in whose hands the voters have reposed it for safekeeping.

The rule of law is the absolute condition for personal liberty in a free society. Without it, we will have the rule of tyrants.

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Civil Liberties, Constitutional Theory 
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  1. That someone disobeys a federal judge’s order no longer means anything to me. Who the hell do federal judges think they are? I say: Trump should go “full Jackson” on the federal judiciary and tell it go to hell.
    I don’t see how a federal judge can order a local law enforcement official not to enforce federal law. What frightens you Judge is: the possible end of judicial supremacy and Americans realizing a Harvard Law Degree does not mean you are entitled to enforce your policy preferences on the public under the guise of “legal reasoning”.

    • Agree: Sowhat
  2. Everyone who follows the judiciary should read “Woe Unto You, Lawyers!” by Fred Rodell, 1939. It unmasks the “witchdoctorism” which constitutes the law.

  3. Seriously, what is fidelity to the Constitution when the common folklore suggests it is open to interpretation and reinterpretation by the Judiciary and the Bureaucracy? The rule of law died a long time ago.

    Central influence or control of local policing is a symptom of a larger problem that has already deeply crippled the Constitutional order.

    We are all district 13 now.

  4. unit472 says:

    Given the threat to police officers lives, I hardly think body armor is militarizing our police. Civil forfeiture is troubling though and may INCREASE crime and violence toward police officers. Taking what little money a person has and or impounding his vehicle does nothing to reduce crime and given the limited options to earn money facing many criminal defendants it may actually provoke such a defendant to commit future crimes and do all they can to avoid arrest.

    • Replies: @Chris Mallory
    , @Escher
  5. “. . . and his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.”

    Your prior arguments lost a whole lot of credibility with that nugget Judge Andy.

  6. The judge sees a “serious challenge to basic constitutional principles.” Oh dear! Somebody should tell him the Constitution is stone cold dead.

    Anybody can read the Constitution and know what it says. But only nine people on earth know what it means. And they are appointed for life. Can anybody see a problem here? Would a jury of my peers agree for instance that the tenth amendment is nullified by the commerce clause? Would it find that money is speech and corporations are people? How did the chief executive of the federal government become an Emperor on a mission to rule the world by force of arms?

    There is no such thing as a living document. Read the Constitution for yourself and see how it comports with the state of law here and now. It does not.

    • Replies: @Corvinus
  7. Ben Frank says:

    It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. ~ Louis D. Brandeis

  8. @unit472

    There is more threat to citizens from out of control cops than to cops from anyone. If the cops do not like the “threat”, then they are more than welcome to find honest work where they are not living off the sweat on the tax payer’s brow.

  9. his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.

    Come on Andrew, you know better than that. The presidential privilege to pardon who he wants for what ever he wants is a basic constitutional principle.

  10. HBM says:

    You can bet your bottom shekel that you-know-who sold this to Trump as a necessity.

    The APCs and weapons just happened to be (or were, at least) ME war surplus; moreover, this burgeoning Stasi force is trained in Israel.

    Israelis are training our cops techniques developed and honed on Palestinians. It’s no co-incidence, either, that the media is largely silent, when one would expect them to be howling their collective faces off about an American Gestapo.

    Where this is headed and what they have in mind is clear unless one is a blind fool.

  11. Issac says:

    So long as you effectively have no borders and treat the majority of your population as second-class citizens, subservient to protected minorities and non-citizens, you’re not going to find a whole lot of takers for constitutional liberty.

  12. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” — from minority opinion of Justice Clarence Thomas, Gonzales v. Raich

    What us truly horrifying to contempate is that the majority opinion in Gonzales v. Raich was written by Justice Antonin Scallia .. a “conservative” hero?

  13. David JW says:

    What a sad article by someone who ought to know the real threat to the rule of law comes from judicial overreach.

    • Agree: Cortes
  14. President Donald Trump’s personal advice to cops to hate and be rough with certain violent but untried suspects, and his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.

    Sheriff Joe Arpaio’s was challenging all people detained in Maricopa county, not just Latinos, to produce documents proving they were in the US legally.

    The DOJ charge of racial profiling was a trumped up charge concocted by race-obsessed Obama and his DOJ diversity scheme cronies.

    Obama didn’t favor Sheriff Arpaio enforcing existing federal immigration laws because Obama himself was intentionally not enforcing federal immigration laws.

    Obama found an activist federal judge to issue a warrant.

    Don’t pretend this activist judge is ministering constitutional justice.

    Judicial activism is to be expected in a federal circus of diversity nonsense.

    Arpaio was charged with a federal misdemeanor because Obama wanted to deny Arpaio a jury trial.

    An impartial jury would have acquitted Arapiao because the federal charges were bogus.

    If Napolitano were serious about constitutional laws and enforcement, he would be denouncing the diversity scheme and its federally-enforced reverse racism, feminism, queerism, crony capitalism, disable-ism, Zionism, socialism, fascism, illegal alienism, Semitism, and military veteran worship that is integral to the diversity scheme.

    The 14th amendment is supposed to provide equal protection of the laws, not special rights for special people.

    Stop running cover for the federal diversity scheme, Judge.

    Trump never ordered police “to hate” violent suspects. That’s leftist baby talk.


    Feminist are federally entitled because of Male oppression
    Jewish are federally entitled because of Gentile oppression
    Queers are federally entitled because of Straight oppression
    Muslims are federally entitled because of Christian oppression
    Disabled are federally entitled because of Healthy oppression
    Afro-blacks are federally entitled because of White oppression
    Latinos are federally entitled because of Gringo oppression
    Hispanics are federally entitled because of Gringo oppression
    Military Veterans are federally entitled because of Militia oppression
    Native Americans are federally entitled because of Paleface oppression
    Asians are federally entitled because of Occidental oppression
    International Socialist are federally entitled because of Local Government oppression
    Social Justice Crony Capitalist are federally entitled because of Honest Businessmen oppression
    Zionist-Neocons are federally entitled because of Anti-Fascist oppression

  15. The prosecution of Sheriff Joe Arpaio was entirely political, pour encourager les autres– to discourage any other upstanding citizen who might try to assist in the enforcement of federal immigration law.

    Now, where are all the prosecutions of the politicians, administrators, other official factotums, and university big shots like Janet Napolitano who have purposely, even brazenly, declined to enforce immigration laws and who openly violate those laws, and where are all the prosecutions of all the many employers who have violated immigration law by their having hired illegal alien labor?

  16. yeah says:

    A very disappointing piece from Judge Napolitano. The major threats to rule of law are coming not from Donald Trump but from judicial overreach (how on earth can a junior judge overrule Presidential orders on immigration when the President has clear statutory authority in this area?), from an out-of-control media that feels entitled to peddle as truth whatever it chooses, from street action and riots intended to force their viewpoints on the silent majority, from out-of-control and completely unaccountable intelligence agencies, from the very deep and bitter divisions that have settled down on American society and body politic, from some very infantile and strange obsessions that have taken hold of the American psyche (President Obama issuing orders on bathroom usage, forced changes of English language in the name of gender equality, … – it is a long list, alas!), and from a complete abandonment of basic honesty and truth by all: Judges, Congress, Republicans, Democrats, media, academics – indeed by all centers of power and influence. The only not-guilty people are Joe Six-pack, Jane the nurse, Al the plumber, and the other non-entities that make up America.

  17. KenH says:

    …..and his pardoning of a former Arizona sheriff convicted of willfully disobeying a court order to stop arresting people on the basis of their skin color and we have a serious challenge to basic constitutional principles.

    For once I agreed with the judge up until this point. Sheriff Arpaio arrested illegal aliens and it might be news to the judge, but most illegal aliens have brown skin and hail from Mexico and central America. They aren’t pale faces from Sweden and Poland. Arpaio was also railroaded by the Obama administration and denied a jury trial which left his fate up to a left wing judge.

    Besides that, I agree that asset forfeiture laws are totally unconstitutional and that Trump is a huge disappointment in arresting or reversing the trend to militarize and federalize local police forces. One could argue that big city police forces might need some military grade weapons given how well armed gangs are but police in smaller, mostly white towns and suburbs without any crime are receiving these weapons also. For what?

    I have an acquaintance who lives in a small, lily white farming community of 500 people and the local fuzz just received an MRAP armorned vehicle as well as two high powered sniper rifles. The closest that town has come to domestic terror threats is cow tipping by the local teenagers on weekends.

  18. Corvinus says:

    “Oh dear! Somebody should tell him the Constitution is stone cold dead.”

    Fake News Story.

    “Anybody can read the Constitution and know what it says.”

    Literally, yes.

    “But only nine people on earth know what it means.”

    Corrected for accuracy –> 9 justices take into consideration the meaning of the Constitution, past decisions, legal precedent, and current laws to render a decision.

    “And they are appointed for life. Can anybody see a problem here?”

    Talk to your local member of Congress.

    “Would a jury of my peers agree for instance that the tenth amendment is nullified by the commerce clause?”

    It depends on the facts of the case, as well as past rulings.

    “There is no such thing as a living document.”

    Of course a constitution is a living document. For example, laws take into account technological developments. Legal issues arise, with the Supreme Court then looking to the Constitution for guidance.

  19. Escher says:

    “Troubling” is a euphemism of the highest order. Police are openly stealing from innocent people, and now they have the attorney general of the United States encouraging them to continue this thievery.

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