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What if the President and the Senate Just Pulled a Fast One?
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What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws or a just law’s unjust enforcement?

What if we have a right to insist that judges be neutral and open-minded rather than partisan and predisposed to a particular ideology? What if presidential candidates promise to nominate judges and justices who they believe will embrace certain ideologies?

What if history shows that Supreme Court justices appointed by Democratic presidents typically stay faithful to their pre-judicial ideologies? What if history shows that justices appointed by Republican presidents tend to migrate leftward, toward the middle of the ideological spectrum? What if some Republican-appointed justices — such as Sandra Day O’Connor, Anthony M. Kennedy and David Souter — migrated across the ideological spectrum so far that they became pillars of the high court’s abortion jurisprudence even though the presidents who appointed them publicly expected the opposite?

What if the real business of judging is interpreting words in the Constitution and federal statutes? What if there is no ideologically neutral way to do that?

What if one theory of constitutional interpretation — espoused by people who say we have a “living Constitution” — informs that the words written decades or centuries ago should be interpreted and understood in accordance with their ordinary meaning today? What if this theory lets judges decide what those words mean today?

What if the opposite theory of constitutional interpretation — called “originalism” — informs that the meanings of words in the Constitution and federal statutes were permanently fixed at the time of their enactment? What if this theory binds judges to well-grounded historical meanings of words and the values they express? What if there is no reconciliation between these two theories of constitutional interpretation? What if judges and justices must choose one or the other or variants of each?

What if the Constitution proclaims itself to be the supreme law of the land? What if that means that all laws and presidential prerogatives that are contrary to the Constitution are unconstitutional and the courts before which those laws and prerogatives are challenged have a duty to declare them unconstitutional?

What if judges and justices — when confronted with laws they like that are clearly unconstitutional — often find creative ways to uphold those laws? What if that is not what judges and justices are supposed to do but they do it anyway?
What if the Fourth Amendment to the Constitution prohibits searches and seizures by the government without a search warrant issued by a judge and based on probable cause of a crime? What if that amendment also requires that all search warrants issued by judges specifically describe the place to be searched and the person or thing to be seized?

What if the Supreme Court has consistently held that surveillance constitutes a search under the Fourth Amendment? What if the British practice of spying on colonists was one of the forces that animated the Fourth Amendment?

ORDER IT NOW

What if the Foreign Intelligence Surveillance Act of 1978, the Patriot Act and their various amendments authorize federal courts to issue warrants that are not based on probable cause of a crime and authorize warrantless surveillance for intelligence-gathering purposes? What if the George W. Bush, Barack Obama and Donald Trump administrations have taken the extreme position that these laws permit warrantless surveillance on everyone in America, even those who are not suspected of wrongdoing?

What if this warrantless surveillance has subjected every person in America to the loss of rights protected by the Fourth Amendment? What if the Supreme Court has characterized the principle of those rights as being among the highest-protected by civilized society — namely, the right to be left alone?

What if a young lawyer who helped to write the Patriot Act in 2001 and its amendments in 2005 and who advised President Bush that he could spy on all people all the time was rewarded for that work with a lifetime appointment to the federal appeals court in Washington, D.C.?

What if this same lawyer, by now a federal appellate judge, was confronted with a case in which the feds had spied on Americans in blatant violation of the Fourth Amendment? What if this judge was publicly committed to originalism — which informs that the Fourth Amendment prohibits (SET ITAL) all (END ITAL) warrantless surveillance of people in America, no matter its purpose?

What if this judge employed linguistic acrobatics in ruling on this conflict between domestic warrantless surveillance — which he advised a former president was constitutional — and the original meaning of the Fourth Amendment, which he knew bars government spying without warrants?

What if this judge — claiming a loyalty to originalism but nevertheless embracing its opposite, the concept of a “living Constitution” — ruled that the feds can spy without warrants on anyone at any time, as long as they do so for intelligence-gathering and not law enforcement purposes? What if this intelligence-gathering exception to the Fourth Amendment exists only in this judge’s mind and not in the Fourth Amendment itself? What if the Patriot Act permits the sharing of intelligence data with law enforcement? What if in this judge’s mind, every bit of data on your mobile device or computer — financial, legal, medical, personal, professional, intimate — is available for government surveillance on a whim and without a search warrant?

What if that judge just joined the Supreme Court? What if his perverse views of privacy and the Fourth Amendment were never discussed at his confirmation hearings but his adolescent drinking habits and sexual proclivities were? What if it is too late to preserve, protect and defend the Constitution? What do we do about it?

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. Yes and yes here … Andrew Napolitano perhaps tho doesn’t say it all … the ‘all’ being that the Anglo culture cult of law and judges being able to decide big policy things, is just plain wrong … Judges should operate in a narrow frame, referring controversial questions back to parliaments

    And Napolitano is right, the Judge Kavanaugh Student Beer Party show, may have been a distraction stitch-up

    For all its flaws, the Continental European Napoleonic legal system, bows to the principle that it is not some ‘piece of paper’, some oligarch-agent-interpreted ‘CONstitution’, but the revolutionary power of common people, which must be served.

    And this bears fruit in practice, given how Napoleonic law countries have much less jailing (1 out of 1000 in Western Europe, vs 1 out of 140 in USA), much less intrusion on people’s lives, much less confiscation of personal assets via draconian and often corrupt ‘judgements’ or police seizures … Funny how assets & property are overall safer in ‘socialist’ Continental Europe

    USA ‘rights’ are on paper, whilst USA judges seize assets and jail people like mad, USA ‘rights’ notwithsanding … USA judges seemingly eager to declare the US Constitution doesn’t apply to the victim they can destroy

    Flaws in European law, like some excessive ‘hate speech’ prosecutions – historically grounded in the Jewish-lobby-led ‘holocaust denial’ laws – still do not change that there is overall, much more justice in Continental Europe. And even the hate speech prosecution extremes, are getting worse in Anglo law Britain than on the Continent.

    As Napolitano hints, the “attack on Brett Kavanaugh” circus, can be seen as a devious calculated scheme to install Kavanaugh

    This attack successfully distracted from very substantive concerns about Brett Kavanaugh, and by a combination of being distracting, and also self-imploding, helping Kavanaugh win his key ‘deciding’ lifetime position on the US Supreme Court

    - Kavanaugh apparently helping the Clintons to abuse a witness and hide evidence in the ‘suiciding’ by gunshot of Hillary law partner Vince Foster, viewed by many as one of the dozens of murders in the ‘Clinton Body Count’
    - Kavanaugh apparently as a Bush White House staffer lying and committing perjury regarding receipt of stolen files, as noted on Unz
    - Kavanaugh apparently supporting torture and suppression of civil liberties in his legal career, as Judge Napolitano notes above

    Was it really an ‘anti-Kavanaugh’ attack … or a circus, with hireling Deep-State-tied women, to help hide the more important concerns re Kavanaugh’s bio, and help Kavanaugh get into his lifelong position which he already now enjoys?

  2. TTSSYF says:

    What if RBG can’t put aside her congenital Leftism, as evidenced by her former association with the ACLU and entirely inappropriate comments about Trump and knee-jerk voting record?

    What if Sotomayor can’t put aside her congenital Leftism, as evidenced by her comment about the Court benefiting from having a “wise Latina” as a justice and knee-jerk voting record?

    What if Kagan can’t put aside her congenital Leftism, as evidenced by her past association with Leftist causes and her recounting of her family debates while growing up, where every side was debated vigorously but eventually all agreed with the Leftist / liberal position (wow, that’s a shocker) and knee-jerk voting record?

    What if Judge Nap can’t seem to resist taking all sides of an argument? Listen to him on Fox — he can’t ever come out with a clear position, always hedging and qualifying his opinions so as to cover all bases, or, in this case, speculating on complicated, too-clever-by-half maneuvering by the Republicans. He’s not much use as a pundit. Sometimes a banana really is a banana.

    • Replies: @Macon Richardson
  3. @Brabantian

    ” Much less intrusion on people’s lives” : Absolute nonsense : In Germany, the most dominent european contry, all residents are required to report their new addresss, under the tyrannical big-brother “Meldepflicht” to the local police citizen registry office.

    “Much less confiscation of personal assets”, again total nonsense. In Germany debt forgivness takes thirty years, as compared to seven in the US., and this oppressive code is directly related to “asset confiscation” if one is able to put two and two together.

    “There is overall much more justice in continental Europe”. And again total hogwash. In Germany for example a court order, or any court correspondence which is held at the local post office of the recipient, and is not picked up within thirty days, due to the absense of the receiver, illness, vacation , whatever, is then considered “served” with all of the possible negative consequences, regardless of the fact that is was not actually “served”.

    The list of legal injustice metted out by the european system could fill tomes, and the you simply do not know what you are talking about.

    Authenticjazzman “Mensa” qualified since 1973, airboren trained US Army vet, and pro jazz musician.

  4. Flat Cat says:

    The congress, the president, and the supreme court started abolishing the Constitution the day after the ink dried. Even a cursory glance at history shows that the only real restraint on the depredations of the State is the ability, and more importantly, the WILLINGNESS of the people to stand up to protect their rights. As loath as I am to agree with G.W. Bush, the Constitution is nothing but a piece of paper. It doesn’t protect a damn thing.

    Sadly, it seems the American people have lost the willingness to defend their rights after 200+ years of wippings and seventy someodd years of living well beyond their means in a gilded cage. Moreover, the ones who do have the gumption generally seem more interested in attacking the rights of people with whom they disagree than the common enemy of all free peoples.

    • Replies: @anonymous
  5. “What if it is too late to preserve, protect and defend the Constitution? What do we do about it?”

    The we call in Captain Kirk to our rescue.

    Sorry, Judge, but that ship sailed a long time ago: The Constitution is no longer worth the parchment upon which it is written because venal posers like yourself have arrogated the power to legislate and “correct” errors of the people’s elected representatives.

    BTW, why do we still refer to people like Napolitano as Judge when they are out of office? That is not the American way.

    • Replies: @Liberty Mike
  6. nickels says:

    But of course the whole point of the supreme court was, from the beginning, to stem the will of the people and preserve the spoils of the Oligarchy.

    • Replies: @Liberty Mike
  7. Andy, Andy, Andy…

    Did you believe for a minute that this careerist Washington DC operator would be out of synch with the Deep State?

    And you make a living with punditry?

    You might acquaint yourself with the idea of constitutional drift, forget about any notions of Originalism, and then try to proceed from a position not necessarily of knowledge, but at least of less ignorance.

    Or, like most others in your game, are you unwilling to face the truth and instead argue about trivia such as which statist judge will get to rule in favor of the state?

  8. Everybody is for sale in the District of Corruption. And the Constitution has no money.

    • Replies: @Liberty Mike
  9. log says:

    What if stare decisis means we are never ruled by the Constitution, but by judicial interpretations thereof?

    What if stare decisis is why the court is politicized?

    What if we junked stare decisis?

  10. What if from the beginning the Third Article of the Constitution had been properly enforced by Congress, Marshall had been slapped down and the federal courts had their wings clipped after Marbury v. Madison, and from the beginning the courts’ function in national government had been reduced to the marginal role originally envisioned by the framers of the Constitution?

    Andrew Jackson demonstrated how easily this could once have been accomplished, e.g., “John Marshall has made his decision: now let him enforce it!”

    Actually, a plain reading of the Third Article of the Constitution suggests that, at least in theory, it’s still not too late. It is clearly within the constitutional prerogative of Congress to: (1) limit the appellate powers of the federal courts, including the Supreme Court, in any way it wishes, up to and including the elimination of all appellate review; (2) then rewrite federal law to overturn the effect of any prior Supreme Court or federal court case Congress wishes; (3) enforce this return to constitutional balance by restricting funding for the federal court system as necessary.

  11. surly says:

    What if this reminds me of Ron Paul’s “What If” speech?

  12. @The Alarmist

    The “people’s elected representatives” constitutes the mob – something which our great white founding fathers feared.

    Two wolves and a sheep deciding what is for lunch is no way to manage the farm.

    Democracy is just a soft variant of communism.

    • Replies: @The Alarmist
  13. @Jus' Sayin'...

    A plea for muh democracy?

    How about all judges taking a meat cleaver to any legislation that even remotely contemplates a NAP violation?

  14. @log

    What if we junked democracy?

    • Replies: @Per/Norway
    , @The Alarmist
  15. @nickels

    What is to be done to stem Jacobinism?

    What is to be done to quell the rebellion of redistribution to the order of free enterprise?

  16. @Liberty Mike

    The People’s elected representatives, in theory answerable to the people, are still better than a Politburo of an annointed few accountable to none.

  17. @Brabantian

    i agree with your thought, not all your statements tho. Here in Norway we only have rights on paper to, the courts care little about the law and instead use legaleze just like in the states. And im quite sure that Germany fares no better, on the other hand the police dont kill us for not reading their minds or a eye twitching and they dont act as highway robbers.(only speeding tickets and EU safety bs) but they take most of what we earn in taxes both hidden openly and i risk serious jail time when i defend myself if i get robbed or attacked and they unarmed us decades ago.

  18. @Liberty Mike

    probably the right thing to do, Christian countries are supposed to be ruled by a Orthodox king and the Canonical laws. Mob rule is a barbarian way to run a country.

  19. @log

    If stare decisis was really the guiding principle in American Jurisprudence, Dred Scott or Plessey would still be the law of the land.

    The UK House of Lords tied itself in knots for years trying to uphold the principle of stare decisis in a growing body of precedents that were distinguished to a seemingly sub-atomic level, but eventually found life was easier if they gave themselves the room to change the law with the times in The Practise Statement (Judicial Precedent) [1966].

    The US SCOTUS should consider making a similar statement.

  20. @Jus' Sayin'...

    Along the same lines, the Executive could declare an inferior court order or stay to be ultra vires and tell the Executive Branch departments to ignore it. If SCOTUS wants to weigh in, it will.

  21. @TTSSYF

    Sometimes a banana really is a banana.

    And sometimes a banana republic is really a banana republic.

  22. alexander says:

    Just the fact , Judge, that neither party grilled Kavanaugh on his views of a “unitary executive”, “warrantless spying” , or “aggressive war powers “..shows how utterly corrupted (by the deep state) both parties have become.

    Its disgraceful.

    Obama had eight years to roll back the unlawful prerogatives falsely granted to the executive under Bush / Cheney…and…with the one exception of “abstaining” from torturing folks , he did exactly jack squat.

    The entire political class, both Democrats and Republicans, function as nothing more than handmaidens to our profoundly criminal deep state.

    At its orders, both parties have spent the last 16 years, lying us into war, murdering millions of innocent people and bankrupting the nation at a record setting pace.

    It is an extraordinary phenomena.

    Absolutely extraordinary.

    • Agree: densa
  23. @The Alarmist

    Still funny after all these years.

    :)

  24. I wish Naplitano were on the Supreme Court. Not that I necessarily agree all his ideas, but I believe they add to the debate about securing our liberties going forward.

    • Replies: @The Alarmist
  25. @Si1ver1ock

    Puhleeez! I’d rather see Judge Judy elevated to SCOTUS; at least she demonstrates common sense.

  26. tyrone says:

    Wow, you think the Republicans are that clever? …… that would take a “very stable genius”.

  27. EH says:
    @Jus' Sayin'...

    Excellent course of action. Also, the Congress must set up a non-lawyer, non-politician tribunal to decide on whether judges have or have not done their duty properly under the “good Behaviour” clause of the Constitution. Judges should be removed quickly for overstepping their authority in decisions. However, they should not have to have a case at issue or even a petition before they can rule on the constitutionality, intelligibility, meaning, or application of any law. Indeed, no law should take effect before judges determine these things and the legislature has endorsed that that is in fact what they meant to do. Today’s legal code wouldn’t even compile – it is unknowable, vast, contradictory and cannot be understood by anyone whomsoever.

    Other proper moves: instituting true trial by jury, with jurors being paid adequately, selected for knowledge and probity, and empowered to do anything a judge or attorney may lawfully do in court

    eliminating immunity for judges and prosecutors

    reinstating the right to private prosecutions (with safeguards against malicious and frivolous prosecutions), particularly of prosecutors, judges and police

    ending the captivity of grand juries by public prosecutors, giving grand juries the resources needed to conduct independent investigations

    making over-charging and plea-bargaining by prosecutors felonies, as well as misprison of felony or lying by police or prosecutors

    eliminating lawmaking by the executive branch – no regulations, only laws – and eliminating all other delegation of congressional power, e.g. the Federal Reserve, and all misappropriation of judicial power to the executive as well – no administrative law judges

    ending debtor’s prison for any debts, including child support or failure to pay probation monitoring

    reform of family law to adhere to the principles of law in general

    ending in rem asset forfeiture and imposition of fines, costs or imprisonment without jury trial

    ending court costs, the courts should be paid out of taxes (fines for frivolous litigation still available)

    ending secret, private or copyrighted law (e.g. copyrighted building codes, perpetual quasi-governmental HOA power)

    ending licensing requirements for practice of professions, particularly law and medicine

    voiding all parts of non-negotiable contracts favoring the drafter, e.g. EULAs

  28. anonymous[340] • Disclaimer says:
    @Flat Cat

    The system works like three hands washing themselves. The Court deals with hot potato social issues in lieu of the invertebrate Congress, forebears (along with the invertebrate Congress) the warmongering and other “foreign policy” waged under auspices of the President, and dignifies the Establishment’s shepherding and fleecing of the people.

  29. TomVe says:

    Brilliant Judge! Absolutely Brilliant! Socrates could not have said it better. A case study in the intellectual power of nuance.

  30. What if it is too late to preserve, protect and defend the Constitution? What do we do about it?

    Ask Lysander Spooner.

  31. KenH says:

    Finally, the judge has returned to form and based his criticism on constitutional concerns instead of leftist or #neverTrump talking points. And I find myself in agreement for once in a long while.

    Democrats have been weeping and wailing that Judge Kavanaugh is an ideologue (as if Democrat appointed justices aren’t) but he strikes me as more of an opportunist. He delivered the goods to Dubya on the USA Patriot Act and was rewarded with an appointment to the D.C. Circuit Court of Appeals where he’s the upheld challenges to it so he’s the gift that keeps on giving when it comes to trashing fourth amendment protections. To me this is neocon judicial activism.

    Trump has never impressed me on civil liberties matters either. He said Edward Snowden should be given the death penalty when any reasonable person would reward him with the medal of honor for revealing the scope of NSA spying on U.S. citizens. He also renewed the Patriot Act.

    So similar to electing presidents we hope for the lesser of two evils when it comes to SCOTUS justices. Kav does have more upside than downside and would be better than a judicial activist nominated by the Democrats. The big question is if he’ll feel the need to virtue signal and “cross the aisle” on occasion to show the left he’s not a bad guy. Or worse, if he’ll morph into a center-left judge over time.

  32. buckwheat says:

    Andrew Napolitano is nothing more than a pompous asshole posing as some great jurist. I had to read the article twice to confirm it’s nothing more than complete bullshit written by a paid shill.

  33. Corvinus says:
    @Jus' Sayin'...

    The fact of the matter is that the Supreme Court serves as a useful check to excessive legislative power and protects the liberties of citizens.

    • Replies: @Authenticjazzman
  34. @Corvinus

    ” Protects the liberties of citizens”

    Yeah sure especially when the crazy leftists are in the majority on the court, wise latinas and all.

    Damn, don’t you ever stop to examine the absurd bullshit that you are incessantly spewing?

    AJM

  35. Corvinus says:

    “Yeah sure especially when the crazy leftists are in the majority on the court, wise latinas and all.”

    Yeah, sure, especially when the crazy conservatives are in the majority on the course, wise whitey and all. Right back at you.

    Do you comprehend how asinine is your comment?

    “Damn, don’t you ever stop to examine the absurd bullshit that you are incessantly spewing?”

    I will admit, projection is one of your endearing qualities.

  36. What if Spooner was right?

    https://www.goodreads.com/author/quotes/238917.Lysander_Spooner

    What if all forms of human governance inevitably become tyrannical? What if there is no way to structure a constitution such that tyranny does not eventually result?

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