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Sept. 22, 2023 - Lionel Nation
22:47
Lionel Joins Judge Andrew Napolitano to Discuss the Constitution
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I am honored to have on Judge Andrew Napolitano to talk about issues that I don't think...
I'm sorry to say, dear friend, you don't talk about enough.
But with all of the...
The plethora of international stories, I don't blame you.
First of all, welcome, my friend.
Thank you for being with us.
Oh, thank you.
We've been friends for years, and it's a pleasure to be on your show, Lionel.
I want to pretend, and by the way, I don't need to explain who you are, so you do not need an introduction, but in the time that is limited, I want to pretend that we're going to be talking about the Constitution and imagine, dear sir, that I am the President or I am the Senate, I am the Tribunal, and I am I am going to select you as my next associate justice or chief judge, and I want to ask you some questions as though I'm a layperson and have no idea as to the relevance of the Constitution.
That is the premise of this.
First, Judge Napolitano, in order of my consideration of you, are you telling us that this document today, oh quaint during its time, is still relevant, still pertinent?
Still appertains to our society?
Is that what you're suggesting?
Well, there's two ways to look at this.
One is formal and one is functional.
Formally, it is still the supreme law of the land because it has not been revoked and because everyone who works for the government, any government, from a school board janitor to the president of the United States swears an oath of loyalty to it.
Formally, it still basically establishes the government, a federal government of three branches, legislative, executive, and judicial, with powers limited to those given to it by the Constitution and all other powers remaining in the states.
That's the formal side.
The functional side is it's been a dismal, dismal, unabashed failure.
It has failed to restrain the government.
It has failed to balance power between the feds and the states.
It has failed to check power between the executive, legislative, and judicial.
Congress enacts laws, whatever it wants.
It writes any regulations.
It wants, it taxes any event it wants.
It intrudes into any private behavior that it wants.
The president gets to declare war and fight a war without congressional interference.
The courts have established public policy that should be established by the legislature.
It has absolutely been a total failure on the functional side.
You would really want to appoint judges and justices who would right the ship, who would, to use Jefferson's phrase, chain the government down.
By the chains established by the Constitution.
Okay, so it is not the Constitution.
It is the fact that it's not being followed.
This is absolutely intact.
In fact, if I could, sir, if I could bring back any of our forebears, anyone in particular, Madison or whomever, and I brought him here now, exhumed him, revivified him.
And here he is.
What would he be the most shocked of in terms of what we have done with his legacy or with the legacy of the Constitution?
What would shock him about today's government the most, do you think?
Well, it depends who you bring back.
If you brought back Hamilton, he'd be delighted.
He's the father of big government.
There are actually three James Madisons.
There's the revolutionary and colleague of Jefferson.
There's the small government anti-federalist, which he was as a congressman and until the very end of his presidency as the president.
And then he became a federalist again at the tail end of his presidency when he signed into law the Second National Bank of the United States, against which he had railed for 40 years.
But he changed his mind at the tail end of his presidency, and that became the Federal Reserve.
So it depends on which Madison you brought back.
But if you brought back Jefferson, He'd be utterly scandalized that the Congress has become a general legislature which recognizes no limits on its power.
Now, how does it do that?
Well, when Congress wants to enact laws that it clearly doesn't have the authority to enact.
I'll give you a simple example.
Speed limits or the blood alcohol content in your veins before you can be arrested for drunk driving.
How does it do that?
It says to the states, here's $100 million to repave the federal highways in your state.
Take the $100 million, but with it comes the following strings.
Lower the speed limits to 55 miles an hour and lower the maximum blood alcohol level before DWI is convicted from.01 to.08.
So when the state of South Dakota said, forget it, we're taking the cash and we're not lowering the speed limit.
We don't have speed limits on our highways out in the middle of nowhere.
And it went to the Supreme Court.
The Supreme Court said, you want the cash, you accept the strings.
What left-wing pinko justice wrote that opinion?
Chief Justice Rehnquist.
What left-wing pinko president signed that into law?
The sainted Ronald Reagan.
So the big governmentality has affected and afflicted and infected just about everybody in the federal government.
In fact, the only person I can think of today, aside from Rand Paul in the Senate for the most part, Thomas Massey in the House for the most part, who best exemplifies the small government maximum individual liberty, is Donald Trump's first appointment.
To the court, whom I encouraged him to appoint, even though I was a candidate for that slot.
And that's Neil Gorsuch.
Justice Gorsuch is the closest we've had to a small government Jeffersonian, to a libertarian, to a textualist on the court in the post-World War II era.
But he's only...
Neil Gorsuch, by the way, who would have been Merrick Garland.
Had Merrick Garland not been Merrick Garland.
Let me ask you this question, Judge.
You've heard this before a million times.
It's almost laughable.
This document is living and breathing and protean and malleable and it changes with the winds and the times and even though something may not be particularly relevant or stated specifically, remember that great statutory construction maxim expressio unius?
Est exclusio alterius.
The expression of one is the exclusion of another.
And all of that stuff.
Don't you think it's time, Judge, that we realize that people believe that abortion, abortion, a woman's right to reproductive freedom, is implicit in this.
And you can go back to the, dare I say, the Douglass notion of penumbras and this, whatever you want to do, I'll call it privacy, but is it not?
Well, the short answer is no.
The longer answer is the baby in the womb is a person.
And the 14th Amendment requires equal protection of persons.
So if the states are going to make murder of a postnatal person a crime, it has to make Murder of a prenatal person a crime.
Now, that's not what the Supreme Court wrote.
That's what I would have written if I were on the court.
Instead, the Supreme Court gave authority for regulating abortions to the states.
Question.
Were there more abortions under Roe v.
Wade or under post-Roe v.
Wade?
Not a happy answer.
Post-Roe v.
Wade, there's more abortions.
Because states like California, New Jersey, New York, and Illinois, in order to show their bravado that they could nullify any pro-life impulses on the Supreme Court, and there were pro-life impulses in that Dobbs' opinion, have made abortion lawful up to the moment of birth.
New Jersey has made it lawful up to the moment, as repellent as this sounds, after birth.
None of that is in the Constitution, and it's all directly defied by the 14th Amendment and by the 5th Amendment.
We live in very sad, sick times.
New Jersey public school teachers are required to tell seven-year-old girls that they can become boys without penises.
Required to tell them that.
That's how sad and sick our society is today.
On a similar note, Judge, do you think the Constitution does anything to guarantee same-sex marriage?
I think the Constitution basically says it's none of the government's business whom you're going to marry.
And because it is silent on that, it's left up to the states.
When the court steps in and says, wait a minute, This is wrong in the case of, let's say, Brown against Board of Education and Plessy, rather, because of we think this is wrong.
The court didn't say, listen, if you want to have segregation, that's up to you.
It's not really, you could argue, equal protection or something, but that's really not our thing.
When does the court decide when to intervene and when not?
When five of them agree, I don't want to sound snarky, but that's the answer.
I mean, Brown v.
Board of Education was a moral decision.
It wasn't really based on strong constitutional principles.
The court did the right thing for human rights because the state legislatures refused to do it.
There was as much opposition in Boston as there was in Atlanta.
To this decision.
The states just wouldn't do it.
So occasionally the court does the right thing.
The Ninth Amendment, which was Madison's favorite, codifies the natural law.
And from time to time, this is St. Thomas Aquinas now, the natural law is like peeling an onion.
You find more rights in there, natural human rights.
Because of what the government has done, and we hadn't recognized these rights before we peeled that layer of the onion.
So in Aquinas' time, and he's the quintessential modern expositor of the idea that our rights come from our humanity.
In Aquinas' time, there were no government schools.
The idea that there would be better schools for one race than for another simply hadn't occurred.
To anybody in government.
But as we developed this over-regulated society here, and as people in the government imported their own personal racial impulses into society, it became the duty of the courts, the unelected branch of government, the anti-democratic branch of government, to do the right thing.
Chris.
My dog.
I hope.
I hope it's your dog.
Either that or you're one hell of a ventriloquist.
Now, here's my question.
If I were a justice myself, I would be terrible.
Let's take the case of Loving, anti-miscegenation laws.
Loving against Virginia, 1967.
I would look at this and say, I don't see anything in here that would prevent a law that would prohibit people from being married or not being married.
However, if you take something which I normally wouldn't find objectionable, But you apply it to white and black versus white and Asian.
If there's a discrepancy and equal protection, then maybe I would say I would find that unconstitutional, but not because there's something inherently beautiful about marriage, but the way you applied something.
I would say there's a kind of a due process or equal protection or something there.
I would be the worst.
I, by the way, happen to dislike capital punishment.
I don't want it for reasons that have nothing to do with morality, but life, liberty, and property, the due process, it specifically says capital punishment's okay.
I happen to be pro-choice, but I don't see anywhere in here that guarantees the right to an abortion.
I don't know.
I couldn't be a judge.
Your analysis on Loving v.
Virginia was actually...
The analysis of the Virginia state courts, which is that it applied, the anti-miscegenation statute applied equally to both white and black, and therefore there was no violation of any equal protection principle.
The court, however, said the choice of a mate is protected by substantive due process.
Substantive due process is a fancy phrase for An area of human behavior immune from the governmental reach.
And the choice of a mate later, after 1967, the choice of a sexual partner.
These are so intimate and so integral to human happiness that the government should have nothing to do with it.
That's the argument for same-sex marriage.
That's the argument for same-sex sex.
That's the argument for...
Interracial marriages, that's now the law of the land.
And it's oxymoronic, substantive due process.
Final question, sir.
Judge Scalia used to say that people look at the Constitution like, what was it, Prego spaghetti commercial?
He said, were the...
The Italian father would say, that's a jar of spaghetti.
What about oregano?
It's in there.
What about basil?
It's in there.
And he said, people always think the Constitution is this magical thing.
It's in there.
Of course.
It's unconstitutional.
We use it as a term of, that's not fair.
It's not right.
Just like the term un-American.
Un-American that they did that.
Whatever that means.
Here's my question.
Recently, there has been a spate of individuals who have been, who've had their speech.
Not crushed by the government, not imprisoned, but people who have been deplatformed, people who have been removed from various positions because they dare to say something which is either misinformation, disinformation, data information, or whatever the particular reason is.
And people said, that is against the First Amendment.
And the argument is that, no, it's not the government doing that, it's a private entity, a private company, or what have you.
But, Judge, my question is, when that entity becomes so big, so enormous, so much a part of the human intercourse in Congress, as we would say, in terms of communication, can we ever say, you know what, I think this is so big, it's almost like it's become a utility.
It's like, I can't shut your phone off if I find out that you're texting something about vaccines that I find objectionable.
And especially when we're finding out that it's alleged that the government has targeted certain people by using these theoretically private organizations.
Explain to the layman how free speech applies if it's not being limited by the government.
Is it just a pipe dream?
Is it just a specific thing that applies only to them throwing you in jail?
Is this a sedition act?
How does this work?
Well, there's a lot to unpack there.
I'll give you as brief an answer as I can, and there's several streams to it.
One is, in the Pentagon Papers case, the Supreme Court did something it never did before, which was to publish a portion of the transcript of the oral argument in the middle of the opinion.
And the portion that they published is Justice Douglas, the great civil libertarian on the court at the time.
This is circa 1973, saying to the government lawyer who wanted to suppress the right of the New York Times and the Washington Post to publish information embarrassing to the government, information that had been stolen from the Defense Department by Daniel Ellsberg, does Congress shall make And there's no answer to that.
The government's answer, and even Douglas' retort, It's not a satisfactory answer.
However, the court has developed a couple of theories in order to preserve human freedom.
One is called chilling and the other is called state action.
So chilling is behavior of the government that gives the speaker pause or second thoughts or fear before he speaks.
A classic example is in the Nixon administration when Nixon dispatched CIA agents and Army in civilian clothes to walk up to anti-Vietnam War demonstrators with an old-fashioned camera with one of those big flashbulbs on it and snap a picture in their face.
And when they found out it was the government doing that, it deterred them from shouting out, hey, hey, LBJ, how many kids did you kill today?
Or ho, ho, ho, chi, man, it's going to win.
Whatever they were shouting.
That's called chilling.
That is a form of interference with free speech.
And when it happens and you can identify it, the courts will invalidate it.
The other is state action.
That's where the private entity...
I'll give you as an example.
I'm not going to pick on them because I'm a client of theirs, but I'll pick on them.
YouTube is doing for the government what the government can't do.
So YouTube can suppress my speech if I put an anti-vaccine scientist on, because they don't like it.
But if they're doing it because the government wants them to, and I can show that, then they are engaged in state action.
They are in the shoes in the place of the government, because then the government is doing indirectly what it can't do directly, which is interfere with speech because of its content.
YouTube did that, and if I could demonstrate it, then YouTube would lose the right that a private bulletin board owner has to take down bulletins that he doesn't like and would be saddled with the restraints of the First Amendment.
So the bottom line to this is the government can't do anything to deter speech, and the government can't do indirectly what the First Amendment prohibits it from doing directly.
As far as treating YouTube as if it were the government, that's not going to happen.
The remedy is the free market.
Get Charles Koch to go out and start another YouTube.
No, no, no.
And that's so critical that we make the distinction about this.
Because, you know, like somebody one time said...
A radio news director said, listen, if you like the First Amendment, good, go on the corner and say whatever you want.
But you work for us, and you can't say that.
But if you'd like to say it, go someplace else.
It's like no shirt, no shoes, no service.
It's one of the limitations.
But it goes to show you, Judge, how conversations like this are so critical.
I want to thank you for taking time out of your busy schedule.
I am such a fan, and I believe that we should have boot camps.
Believe it or not, where people can come and basically learn, because this isn't taught in school.
Judge Andrew Napolitano, thank you so much for being with us, sir.
I will soon be offering one of those boot camps on judging freedom.
Excellent.
And it will be courses in the Constitution, the Declaration of Independence, and the Bill of Rights.
Sign me up.
Thank you so much, sir.
Have a wonderful day.
Thank you, Lionel.
All the best to you.
Thank you for your great work.
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