Product Description

What ever happened to our inalienable rights?

 

The Constitution was once the bedrock of our country, an unpretentious parchment that boldly established the God-given rights and freedoms of America. Today that parchment has been shred to ribbons, explains Fox News senior judicial analyst Judge Andrew P. Napolitano, as the federal government trounces state and individual rights and expands its reach far beyond what the Framers intended.

 

An important follow-up to Judge Napolitano's best-selling Constitutional Chaos, this book shows with no-nonsense clarity how Congress has "purchased" regulations by bribing states and explains how the Supreme Court has devised historically inaccurate, logically inconsistent, and even laughable justifications to approve what Congress has done.

 

It's an exciting excursion into the dark corners of the law, showing how do-gooders, busybodies, and control freaks in government disregard the limitations imposed upon Congress by the Constitution and enact laws, illegal and unnatural, in virtually every area of human endeavor.

 

Advance Praise for The Constitution in Exile from Left, Right, and Center

 

"Does anyone understand the vision of America's founding fathers? The courts and Congress apparently don't have a clue. But Judge Andrew P. Napolitano does, and so will you, if you read The Constitution in Exile."-BILL O'REILLY

 

"Whatever happened to states rights, limited government, and natural law? Judge Napolitano, in his own inimitable style, takes us on a fascinating tour of the destruction of constitutional government. If you want to know how the federal government got so big and fat, read this book. Agree or disagree, this book will make you think."-SEAN HANNITY

 

"In all of the American media, Judge Andrew P. Napolitano is the most persistent, uncompromising guardian of both the letter and the spirit of the Constitution, very much including the Bill of Rights. Increasingly, our Constitution is in clear and present danger. Judge Napolitano-in The Constitution in Exile-has challenged all Americans across party lines to learn the extent of this constitutional crisis."-NAT HENTOFF

 

"Judge Napolitano engages here in what I do every day on my program-make you think. There's no question that potential Supreme Court nominees and what our Constitution says and doesn't say played a major role for many voters in our last couple of elections. What the judge does here is detail why the federal government claims it can regulate as well as tax everything in sight as it grows and grows. Agree or disagree with him-you need to read his latest book, think, and begin to arm yourself as you enter this important debate."

-RUSH LIMBAUGH

 

"At a time when we are, in Benjamin Franklin's words, sacrificing essential liberty to purchase a little temporary safety, here comes the judge with what should be mandatory reading for the executive branch cronies who are busy stealing power while they think we're not watching. Thank goodness the judge is watching and speaking truth to power. More than a book, this is an emergency call to philosophical arms, one we must heed before it's too late."

-ALAN COLMES

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Product Details

• Amazon Sales Rank: #270545 in Books
• Published on: 2006-04-18
• Original language: English
• Number of items: 1
• Binding: Hardcover
• 320 pages

From Publishers Weekly
Napolitano, New Jersey Superior Court Judge and analyst for Fox News, explains how the federal government has manipulated the Constitution to take power from the states and the people. Written for a general audience, Napolitano's book also includes a brief history of the founding of the United States, the Bill of Rights, the specific powers granted to Congress in the Constitution and an explanation of relevant legal precedents. Napolitano's nonpartisan apprehension toward a strong central government is clear as he takes issue with both Democratic and Republican legislative initiatives, including the Energy Policy and Conservation Act of 1992, the Patriot Act, attempted FCC regulation of HDTV sets and the retention of Yasser Hamdi and Jose Padilla. However, the book is disappointingly sparse on ways to fix the problems he decries; after 240 pages of citing issue after shortcoming after perversion of founding fathers' intents, he hurries through a six point plan (in just over a page) that involves rewriting the Constitution so the preamble begins "We the States," abolishing the popular election of senators and allowing states to secede from the union and enjoy territory status sans "a federal boot on their throats." His conversational tone and historical perspective make his argument accessible to general readers who are interested in current events but turned off by wonky pundits.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

Excerpt. © Reprinted by permission. All rights reserved.

Introduction
ROOTS OF THE CURRENT DEBATE

What Rosa Parks Knew That We Forget

To understand the Constitution and where it came from, we must look at its counterpart, the Declaration of Independence, and we must understand the Natural Law that grounds both documents.

Whether they realize it or not, most contemporary legal scholars and politicians in the Western world stand behind two competing theories about the origins of law and liberty: Natural Law and Positivism. The Natural Law school of thought argues that freedom comes by virtue of being created human, from our very nature, and holds that laws created by kings or legislatures are always secondary to the Natural Law. It is the royal flush against which any other law is merely a pair of deuces.

This is not a new concept. The Greek writer Sophocles "recognizes the reality that human laws are subject to a higher law," according to my professor of constitutional law and jurisprudence at Notre Dame Law School, Charles E. Rice. Similarly, Aristotle observed that "one part of what is politically just is natural, and the other part is legal." Cicero described it as "the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite." Writes Cicero, "Right is based, not upon men's opinion [from popular legislatures], but upon Nature."

In more recent times, Justice Clarence Thomas, writing about the "higher law political philosophy" of the Founding Fathers, stated, "Natural rights and higher law arguments are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review--a judiciary active in defending the Constitution. Rather than being a justification for the worst type of judicial activism, higher law is [the] only alternative to the willfulness of both run-amok majorities [in Congress] and run-amok judges [in federal courts]."

Natural Law theory teaches that the law extends from human nature, which is created by God. The Natural Law theory states that because all human beings desire freedom from artificial restraint and because all human beings yearn to be free, our freedoms must stem from our very humanity--and ultimately from the Creator of humanity.

Perhaps no one can answer the question of "What is the Natural Law?" more clearly than Professor Rice: "Natural law will seem mysterious if we forget that everything has a law built into its nature. . . . If you eat a barbed-wired sandwich, it will not be good for you. If you want your body to function well, you ought not to treat it as if it were a trash compactor. Natural law is easy to understand when we are talking about physical nature. But it applies as well to the moral sphere."

Think of your human experience as derived from God, as Rice has suggested, like a car that is derived from its manufacturer. God (or the Universal Spirit if you are not religious) is the manufacturer of your life. God created you and sent along a manual, much like the vehicle manufacturer includes in the glove compartment of your car (does anyone actually keep gloves in them?). The manufacturer wants you to drive your car successfully so that you and your friends will buy more cars, so it gives you tips on how to maintain the car and how to get out of trouble should it break down. Likewise, according to the Natural Law, God has equipped you with a manual--some say it is the Bible, others the Tanakh, others the Koran, others a rational mind. No matter what you believe, the Natural Law of the world can be seen running throughout any of the time-tested documents of Western Civilization. "It would be a strange motorist who would resent the existence of that manual and refuse to look at it," says Rice.

Strange indeed when you think of the important, real-world implications and consequences of Natural Law. Take the case of Rosa Parks.

Parks's famous refusal to give up her seat on a bus in 1955 in Alabama was a demonstration of "a proper reading of the Natural Law," according to Rice, because she refused to obey an unjust law. She played the royal flush and trumped the segregationists, who relied on the prejudiced opinion of popular majorities, not higher law. Said Martin Luther King Jr., "A just law is a man-made code that squares with the moral law or the law of God. . . . An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, 'unjust law is a human law that is not rooted in eternal law and natural law.'"

These concepts about law and liberty played an important role in the American experience from the very start.

NATURAL RIGHTS

The language of the Declaration of Independence refers specifically to God-given rights, those received by virtue of our humanity. The very first sentence claims a God-given right to be separate and equal beings--existing apart from a political power. The Declaration says that it is possible and even sometimes necessary--like Parks's refusal writ large--for "one people to dissolve the political bonds which have connected them with another, and to assume . . . the separate and equal station to which the laws of nature and of nature's God entitle them. . . ." God grants "certain unalienable rights." Government is supposed to secure them.

If the text of the Declaration is not sufficient evidence of the role of Natural Law in the formation of our country as an independent state, Thomas Jefferson's studies and writings reveal a strong adherence to Natural Law principles. Jefferson was heavily influenced by the writings of John Locke and Thomas Paine. He borrowed considerably from the language and philosophies of both men in drafting the Declaration. For example, both Locke and Paine used the word "unalienable" to describe human rights.

Locke, in his Second Treatise on Government, wrote, "Reason . . . teaches all Mankind . . . that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." That immunity from harm includes harm caused by government--language and thoughts clearly echoed in the Declaration and its understanding of natural rights.

In The Rights of Man, Paine wrote that these natural rights include "all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others." The government, Jefferson and Paine argued, is necessary to secure those rights in the civil context.

Jefferson's own writings, prior to and after the Declaration, also display his belief in Natural Law. In a legal argument written in 1770, Jefferson wrote that "Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance." Note that Jefferson chose to capitalize the A in Author--a reference to God that would have been crystal-clear to his contemporaries. Jefferson could be more explicit when he needed to be. "The God who gave us life, gave us liberty at the same time," he declared in July 1774.

It is clear from the text of the Declaration, and the influences and writings of its principal drafter, that Natural Law principles establish the rights referenced in the Declaration of Independence. And that is precisely how constitutional originalists such as Justice Clarence Thomas interpret it.

The significance of the Declaration for constitutional scholars is that it is believed to contain the philosophical underpinnings of the Constitution. In other words, an understanding of Natural Law, its conferral of rights upon men and women, and the relationship between those rights and the role of government is fundamental to understand and interpret the Constitution properly.

WHY SHOULD WE CARE?

That freedom comes not from government, not from the consent of the governed, not from the community, but from God and is inherent to our humanity has profound effects on modern jurisprudence. It means that our basic freedoms--such as freedom of the press, freedom of speech, freedom of religion, freedom of association, freedom to travel, and freedom from arbitrary restraints--cannot be taken away by the government unless we are convicted of violating Natural Law, and the government can only convict us if it follows what is called "procedural due process."

Due process means that we know in advance of the violations of Natural Law that the government will prosecute, that we are fully notified by the government of the charges against us, that we have a fair trial with counsel before a truly neutral judge and jury, that we can confront and challenge the government's evidence against us, that we can summon persons and evidence on our own behalf, that the government must prove our misdeeds beyond a reasonable doubt, and that we have the right to appeal the outcome of that trial to another neutral judge.

Under the Natural Law, the only way that any of our natural rights can be taken away is by conviction by a jury. Our rights cannot be legislated away, no matter how universally accepted the legislation, and they cannot be commanded away, no matter how beloved, benign, or correct the commander may be.

Because free speech is a na...

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Customer Reviews

Well written, engaging, and much more radical than you would expect
When one sees Judge Napolitano on the Fox News Channel or hear him on the radio providing excellent analysis of the law and issues of the day, one would be forgiven for not suspecting him to hold such radical notions about our Constitution, history, or his own preferences for changes in our society. No doubt about it, he is a radical and it is a refreshing sort of radicalism because what he is after is the Constitution and form of government framed by our Founders. This book lays out his views on how our nation went off the path we started down with the Constitution in 1789. It is easy to beat the drum for getting back to the Constitution, as many conservatives do, but it is another to be as clear and forthright about what it means.

The Constitution is in Exile because its original intent and its governing power in our laws has been banished through legislative power grabs that went unchecked by the judiciary and then by a judiciary that grabbed power from the legislative and executive branches. The author is also concerned about abuses of power by the executive branch, as Napolitano sees them, during the Lincoln administration and in our present administration with the USA PATRIOT act.

First, let's get rid of one phony argument about the Constitution and slavery and its moral invalidation of the Constitution. Yes, the Founders compromised on slavery, but that doesn't mean that everyone supported it or that it wasn't a monstrous institution that was at odds with our founding principles. It was. However, the compromise does not mean the Constitution is invalid or should be ignored. It is still our founding document and unless its stated process of amendment is followed, the document should bind the very government it authorizes to its stated principles and powers.

That being said, Napolitano takes us through what the Constitution actually says about the powers it authorizes for the Federal government (he is also very good on noting the difference between a Federal versus a national government - the latter not being authorized in the Constitution). He notes that there are 18 enumerated powers. Throughout the rest of the book he takes us through cases where the legislative branch went off the track and how the courts, for most of our history, usually brought them back in line. Of course, there is a cursory discussion of judicial review and the inevitable Marbury v. Madison.

Napolitano really begins his radical discussion with his harsh criticism of "Dishonest Abe" and the Civil War. Napolitano doesn't believe the Civil War was necessary or just and that Lincoln committed many profoundly illegal acts. He then takes us through to the New Deal of FDR. It is here that Napolitano notes that the COURTS then became corrupted. The cloud of Socialism pushed the government into tortured interpretations of the law and the Constitution (especially the commerce clause) to enact programs that would have been declared unconstitutional through all of American history up to that time. The author notes time and again that emergencies do not justify compromising principles because the emergency will pass, but the corruption will remain.

He has a strong point there. Look at how the RICO act has been used. It was originally justified to go after the Mafia and helped break the back of the mob. However, it didn't go away and became a tool of aggressive prosecutors to go after ordinary citizens that they didn't like. Or look at the Alternative Minimum Tax that was originally to ensure that rich folks paid taxes (which they would have to do if we had a serious and fair tax code). Nowadays, millions of ordinary folks are stuck paying the AMT because of inflation, which was caused by the very same government.

So, Napolitano is very right to raise the issues and concerns around the USA PATRIOT act. Not so much for any abuses that may or may not be taking place now (although he lists some things he considers abuses), but because of the uses these powers will be put to in the future. National Security Letters do seem awful and nightmarish and very much like one of the abuses that helped spark our revolution.

Still, you will have to wrestle with where Napolitano wants to take us. War is a very complex and awful thing. It does deprive people of life, liberty, and pursuit of anything. It does not lend itself to lawyers, fairness, and neat outcomes. The author is adamant that American citizens, even when enemy combatants, deserve all the protections under the Constitution and must be tried under its provisions. I am not so sure, but I understand his concerns.

In the conclusion, Judge Napolitano also argues for changes in our government that would strengthen states rights and lessen the power of the Federal government in order to get it more in line to the original conception of the Founders. Among other things, he would spell out the process to allow states to secede from the Union (wow!), change some language in the Constitution to make it clear it is the states authorizing the Federal government, and clarify and limit the commerce clause. He would also repeal the sixteenth amendment authorizing income taxes, and the seventeenth amendment authorizing the direct election of senators (the idea being that the original idea of the Senate was to have a house representing the STATES).

This is an interesting, engaging, and useful book no matter where you come down in your views of what he puts forward. You will be better off and more informed after reading it and I encourage you to do so.

Fascinating and insightful, a worthy and important read
Who would have thought the law could be so interesting... Judge Napolitano is not only a brilliant legal scholar, but an engaging author as well. This thought provoking book is very easy to read and understand. It is also quite insightful, delving deeply into topics most of us have not thought much about until now. For example, the Federal government was created by the states not the other way around. The constitution, therefore, was written in large part to safeguard the rights of those states. The uniform drinking age specifically supersedes rights that the constitution left to the states. The same thing goes for medical standards, education, and a whole lot more, not necessarily due to any malicious or nefarious intent but simply because it has become accepted practice. Under the vision of our Founding Fathers, the Federal government was never supposed to have the sweeping authority it has acquired. Napolitano's fascinating book highlights these important issues and gives readers a lot to think about and perhaps act on in the next election... A thought provoking, interesting, and important read. Highly recommended!

Can we turn this enormous ship around and get it sailing in the right direction?
Judge Andrew Napolitano cares about the US Constitution. A lot. And he is concerned that both individual and state rights which have been eroded already, and are being abridged more, will not come back. This concern comes through loud and clear in each and every chapter.

To Judge Napolitano, the US Constitution is not a "living" thing; rather, it is a document which is unassailable and incontrovertible in its protection of basic human rights, rights which are immutable and which do not change from day to day nor from Century to Century. Napolitano begins the book with a primer on the Constitution and the events surrounding its drafting. And early on, we see that the Founding Fathers were very cognizant of the threats faced by the union, yet they did not enact laws which went against the Natural Rights of man. Often in difficult or scary times it can be all too easy to enact laws which seemingly protect us, but which do so at the expense of our fundamental rights (and State rights) put forth in the Constitution....and some people take advantage of this to the people's detriment.

This book will enlighten most people I think. I follow politics quite closely, and yet was unaware of many of the rights which were slowly eroding from right under our feet, (even though I knew there were many!)....I just was not aware of the scope and size. I was not even aware Lincoln suspended habeas corpus; I was always taught what a great President he was as he was behind the freeing of the slaves with the Emancipation Proclamation! Yet in a direct quote of Lincoln, he stated that he would have done **anything** to protect the union, if it meant freeing all of the slaves or even if it meant freeing none! I was also unaware of how much Lincoln had affected the slow dissipation of states rights, rights clearly enumerated in the 10th amendment. For all intents and purposes, Lincoln ignored the 10th Amendment, not to mention the 4th and several others. And throughout the book, you can clearly see how other Presidents, Justices, and Congresspeople make the same unforgivable error throughout the years, though perhaps not quite to the extent Lincoln had.

It should also be noted that Judge Napolitano in very fair in his criticisms. He sides with George Bush on many issues as a Fox News Judicial Analyst, but in The Constitution in Exile, he is unrelenting in his criticism of the current Administration and the Congresspeople who go along with such things as the current day PATRIOT Act. "National Security Letters" sound almost Orwellian and clearly go against the intent of the Founding Fathers, especially if, as Napolitano states, judges are on standby 24/7 to sign warrants for searches or arrests. Instead, the "National Security Letters" allow the federal agents to write them on their own! What is the point of having warrants issued if the people who are supposed to present **some** proof of guilt are able to fill them out on their own, without any questions asked? Where does this slippery slope end? That is the question Napolitano poses time and time again.

Some complaints however....near the end of the book Napolitano refers to a famous dissent from Justice Holmes, one that has been quoted probably more than any other dissent in US Supreme Court history. And then he proceeds to his next point, without giving us the dissent! And there are other times in the book when more detail could have been given, more facts presented. Instead he will sometimes move quickly on to the next point.

In the end, Napolitano's zeal for keeping the true meaning of the Constitution intact is what impressed me most. We need more people like him upholding the true intent of the Founders and their creating of an almost sacred document recognizing inherent rights in man and protecting them at any and all costs. Because as history has shown, once they are gone, they will probably not come back.

A must read.