The Constitution in Exile by Judge Andrew P. Napolitano
November 19, 2009 by Bob Livingston
Almost since its adoption in July 1789, the U.S. Constitution—the oldest continuously effective written constitution in the world—has been under assault by presidents, Congress and errant decisions handed down by Supreme Court justices.
That’s the view of Judge Andrew P. Napolitano in his book, The Constitution in Exile.
Napolitano, the senior judicial analyst for Fox News Channel, New Jersey judge and legal professor and talk radio co-host, describes what the founders envisioned when they wrote the constitution. He explains Natural Law—that rights are endowed by a Creator, not by government—and what that idea meant to the Founders and should mean to us today. He describes Natural Law’s opposite—Positivisim—which is the idea that the law is whatever those in power say it is.
And, Napolitano lists and describes the 18 enumerated powers granted to government by the constitution and what each of them means, as well as the purpose behind the inclusion of the Bill of Rights.
“In establishing our system of separate powers, checks and balances, and federalism, the Founders limited Congress—and thus the will of Positivists—to eighteen specific, enumerated, and delegated powers. Those three words are important. Specific means something that is definite or explicitly set forth. Enumerated refers to things that are listed individually by their identifying characteristics. Delegated refers to a power that has been assigned by one party another.
“The Founders did this to create a system of government in which power is diffused between the states and the central government and diffused further within the central government. State sovereignty is maintained; and because governmental power was not concentrated anywhere, individual liberty is protected…”
The judge takes the reader on a legal course through American history outlining the first assault that began with the Judiciary Act of 1789, passed by the Federalist-controlled Congress, and the effects the 1800 presidential election had on the makeup of the federal judiciary.
After Thomas Jefferson defeated John Adams for the presidency, the Federalist-controlled Congress created 42 additional judgeships and then Adams appointed Federalist John Marshall as chief justice of the Supreme Court.
Jefferson voided the appointment of the “Midnight Judges” and one of them, William Marbury, sued directly to the Supreme Court. Two years later, after much legal wrangling over Marbury’s suit, the Supreme Court ruled that portions of the Judiciary Act of 1789 were unconstitutional and Marbury had sued in the wrong court.
That result made it appear as if Marshall was in favor of limiting Congress’ powers to those enumerated. But future decisions by Marshall and his court showed his desire was to centralize power, and Napolitano covers the individual cases and what they meant.
Napolitano also covers the Federalism of Abraham Lincoln and how his unconstitutional actions before and during the Civil War further centralized power, and how Lincoln’s actions affected the Constitution.
The next great assault on the Constitution came from Franklin Delano Roosevelt’s New Deal and Roosevelt’s threat and then his attempt to stack the court or alter its very makeup. And Napolitano covers that era in great detail.
Included in that era is the beginning of the use of the Constitution’s “Commerce Clause” to grant Congress the power to regulate almost everything, a ploy that continues apace to this day.
And then there is the assault on freedom known as the USA PATRIOT Act, passed by Congress and signed into law by George W. Bush while the rubble of 9/11 still smoldered.
“The PATRIOT Act is the most unpatriotic of the things that the Bush administration and this Congress could have visited upon us,” Napolitano writes. “When then-Attorney General John Ashcroft advocated before the House Judiciary Committee, he said, in effect, ‘we need the powers under this PATRIOT Act. We need them so badly—there are so many bad people out there we need to prosecute—that there isn’t enough time to debate it.’”
And without debate it passed.
Among other things, the USA PATRIOT Act effectively voided the Fourth Amendment and gave federal agents and local police the authority to write their own search warrants and serve them without the intervention of a judge. Such a thing would be anathema to the Founders.
This book is written in the plain, easy to understand language that Napolitano uses every day on Fox and on his radio show. It’s a roadmap of the assaults hoisted upon our Constitution, and hence our freedoms, throughout the 200-plus years of that great document’s existence.
Among other things, The Constitution in Exile shows that the power grab going on today is not new, but rather is the culmination of many years of assaults led by those who believe that government knows best.