Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Everyone wants to live at the expense of the state. They forget that the state wants to live at the expense of everyone.”     Frederick Bastiat

February 13, 2008

Judge Andrew Napolitano Discusses the History of Civil Liberty Violations in America

by Stephen Littau

Judge Andrew Napolitano gave a speech for Reason Magazine in Washington D.C. in October of last year on the history of Constitutional infidelity. Virtually every president from George Washington to George W. Bush has broken his oath of office to defend the Constitution. President John Adams, the nation’s second president, was the first president who tried (and succeeded for a time) in curtailing free speech rights with the Alien and Sedition Acts. These blatantly unconstitutional laws made it a crime for anyone to publicly criticize members of congress, the president, or his cabinet. Interestingly, there was no prohibition for criticizing the vice president, who happened to be Adams’ political rival – Thomas Jefferson. Jefferson was adamantly opposed to the acts and allowed them to expire whenever he became president.

Since John Adams, there have been many, many other Constitutional violations from all three branches of government which continue to this day. Much has been said in recent years about how President George W. Bush has trampled on the Constitution by passing such laws as the U.S.A. PATRIOT Act. Of the 43 presidents of the U.S., where does George W. Bush rank when it comes to violating the Constitution?

Napolitano answers:

George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln.

Worse than Woodrow Wilson, FDR, LBJ, or Richard Nixon? Now that’s a bold statement! Whether it’s Hillary Clinton, Barack Obama, John McCain, or Mike Huckabee as our next president, one thing seems to be certain: our civil liberties protected by our constitution will be further compromised. It’s really only a question of to what degree they will be compromised.

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26 Comments

  1. Long clip but Napolitano is always worth listening to.

    Comment by UCrawford — February 13, 2008 @ 4:41 pm
  2. I wish his podcasts and books were as good as this.

    Comment by Norm Nelson — February 13, 2008 @ 5:37 pm
  3. Well, I have a hard time, a very hard time, agreeing that Bush is worse than FDR. Incredibly hard. After all, he did not, by Presidential Order, put hundreds of thousands of Americans in concentration camps and allow their property to be taken for pennies on the dollar. Nor did he force the Supreme Court to behave unconstitutionally through threatening to use his congressional majority to pack the Court.

    I agree he’s bad, but not like FDR bad. Sorry, that sort of false exaggeration is a real problem for me.

    Comment by Adam Selene — February 13, 2008 @ 7:11 pm
  4. In my view, Judge Napolitano hits the nail on the head.

    Well, I have a hard time, a very hard time, agreeing that Bush is worse than FDR.

    Degrees of separation. FDR had the concentration camps, Bush has Gitmo and the dismantling of legal protections and any meaningful path for redress.

    In all the ways that matter, I have come to believe that the only real accomplishment that Bush has made is the war on terror. However, in conducting this war, he has willingly instituted law, policy and procedure which directly nullify individual freedoms. Freedoms whose very presence guarantees that terror cannot take root and thrive: as it most assuredly can in a police state.

    Comment by Harry Rossman — February 13, 2008 @ 7:42 pm
  5. Hi all. Cool site zawermash Google
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    Comment by injusany — February 13, 2008 @ 8:35 pm
  6. Adam,

    Yup, got to agree with Harry. I think that the damage Bush has done is far more horrific than what FDR did, although it’s close. Bush basically fought for the right for the government to torture detainees, including U.S. citizens. FDR didn’t do that. FDR didn’t actually start WWII as Bush started Iraq, and he didn’t try to fight it on the cheap by shafting soldiers on equipment and manpower as Bush did. Whatever your opinions may be about WWII (and I realize that not everyone will agree with my opinion that it was a just war) I think we can all agree that at least FDR at least fought it to win…Bush is only continuing the fight in Iraq because he refuses to accept blame for losing and he doesn’t seem to care how many people (U.S. and Iraqis) have to die just so he can save face either by not withdrawing or by trying to expand the war to Iran. It pains me to say it, but I’ll take FDR over Bush any day.

    Comment by UCrawford — February 13, 2008 @ 8:48 pm
  7. Oh please, you guys need to really look at FDR.

    - Fought an undeclared, unpublicized war against Germany in the North Atlantic. American sailors and merchant marine were dying on presidential orders as early as January, 1940
    - Created the OSS, a very secretive intelligence agency that later became the CIA. Torture, double dealing, secret detainment, etc. was common. The argument that they were fighting the Nazi’s was commonly used (sound similar to today?)
    - The Nisei concentration camps were much worse on scale of magnitude than Gitmo
    - Illegal bank holidays
    - Private ownership of gold made illegal
    - The New Deal, basically fascism brought to the USA, right down to demagoguery, rallies like Nuremberg, etc.
    - Did you know that FDR pinned Iron Crosses on his congressional opponents as a means of silencing dissent?
    - The “Switch in time that saved Nine” Supreme Court packing

    I could go on and on, but you guys are so fixated on the current devil ……. who is bad, I agree. But not even close to our fascist president.

    Comment by Adam Selene — February 14, 2008 @ 7:10 am
  8. Let’s not forget the propaganda and racism of the FDR administration. They very effectively, and brazenly, used fear of “the other” to mobilize the USA. And how about the terror bombing of Germany and Japan? What about the illegal suppression of free speech opposing US involvement in WWII prior to a declaration of war? What about the use of J Edgar and the FBI to spy on internal enemies and suppress dissent?

    Bush is just incrementally continuing the tradition of American Fascism. FDR is the one that brought it to this country.

    Comment by Adam Selene — February 14, 2008 @ 8:05 am
  9. Adam,

    Fought an undeclared, unpublicized war against Germany in the North Atlantic. American sailors and merchant marine were dying on presidential orders as early as January, 1940

    Against a nation with a military and industrial base actually capable of threatening the U.S., unlike Iraq. I can understand the difference in opinion but I side with Roosevelt on this one.

    - Created the OSS, a very secretive intelligence agency that later became the CIA. Torture, double dealing, secret detainment, etc. was common. The argument that they were fighting the Nazi’s was commonly used (sound similar to today?)

    First of all, cite specifics not rhetoric. I’ve heard this “OSS tortured people” argument before and I’ve yet to see anyone bring up actual data of widespread torture happening on the part of OSS agents during WWII. I’m not saying that no incident ever occured (because atrocities occasionally happen even in the best organizations) but from the actual evidence I’ve seen presented it was never an institutional practice on the part of the OSS. Cite specifics and then we’ll debate the morality of the OSS.

    The Nisei concentration camps were much worse on scale of magnitude than Gitmo

    In numbers of people, not in the treatment of those people. The Nisei camps (abhorrent though they were), unlike the Nazi concentration camps were not used to exterminate Japanese-Americans, and they were run in accordance with international law, unlike Gitmo. You’re cherry-picking your facts.

    - Illegal bank holidays

    Demonstrate the catastrophic harm.

    - Private ownership of gold made illegal

    Agreed, it was wrong and economically indefensible…and it’s no longer in place.

    - The New Deal, basically fascism brought to the USA, right down to demagoguery, rallies like Nuremberg, etc.

    The New Deal, comparable to Bush’s installment of McCain-Feingold, the MCA, the War on Terror, the PATRIOT Act, and Medicare Plan D. Had FDR lived to install his “new Bill of Rights” I’d say he was worse than Bush by a long-shot, but he didn’t. I have no idea what you’re talking about with the Nuremburg comment.

    - Did you know that FDR pinned Iron Crosses on his congressional opponents as a means of silencing dissent?

    Bush pins Presidential Medals of Freedom on those who suck up to him (or those who he wants to co-opt) and accuses those who oppose him of supporting terrorism, meaning nothing more than that Bush and FDR both demonized their political opponents to stifle debate. That’s pretty much a wash.

    - The “Switch in time that saved Nine” Supreme Court packing

    Agreed, this was worse than anything Bush did with regards to the Supreme Court. Of course, just because he appointed two new justices wouldn’t have meant those justices would automatically agree with him (as Ike found out with Earl Warren and William Brennan). Also, ultimately it was the Supreme Court who was responsible for craven cowardice by allowing their verdict to be influenced by coercion.

    Let’s not forget the propaganda and racism of the FDR administration. They very effectively, and brazenly, used fear of “the other” to mobilize the USA.

    “We leave before the mission is done, the terrorists will follow us here” – President Bush, justifying continued involvement in Iraq with a logistically improbable threat of a Middle Eastern invasion of the United States.

    “States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world.” -Bush’s description of Iran, Iraq, and North Korea, none of whom happen to be led by white people, unlike Russia…whose leader (corrupt, murdering, authoritarian white guy Vladimir Putin), Bush said he understood because he “looked into his soul”.

    And if you really want to quibble we could always mention Bush campaigning at a racist university in 2000, or his exclusion of local and foreign contractors in Iraq so he could give no-bids to preferred U.S. businesses, or his extremely patronizing attitude that Middle Eastern governments are incapable of democratic reform unless we go in and force them to reform. I don’t seem to recall FDR saying that it was our job to spread “democracy” by force to the unenlightened “suiciders” of the world.

    “And the second way to defeat the terrorists is to spread freedom. You see, the best way to defeat a society that is — doesn’t have hope, a society where people become so angry they’re willing to become suiciders, is to spread freedom, is to spread democracy.” –George W. Bush, Washington, D.C., June 8, 2005

    Comment by UCrawford — February 14, 2008 @ 9:08 am
  10. UC Crawford,
    The bank holiday thing was essentially a license for the banks to steal! It prevented people from recovering their funds from insolvent banks. Imagine if your bank arbitrarily announced it wouldn’t allow withdrawals for 14 days. You got enough cash on hand for groceries?

    Comment by tarran — February 14, 2008 @ 9:41 am
  11. tarran,

    I understand the argument and agree it was the wrong decision. But at the time the Emergency Banking Relief Act was passed Roosevelt considered it necessary to keep the country from falling into financial collapse. Was he wrong? Probably so…as Milton Friedman pointed out in “Free to Choose” banks were often able to deal with the circumstances on their own without requiring the government to intervene. But FDR also did it to stem the immediate consequences of a major panic at the time, it was reasonable considering the information he had available, so I don’t attribute maliciousness to it as I do to his actions towards the Supreme Court or most of Bush’s actions post-9/11 (which were generally based on Bush’s unwillingness to listen to any information that contradicted him).

    Comment by UCrawford — February 14, 2008 @ 9:51 am
  12. tarran,

    UC Crawford? :)

    Comment by UCrawford — February 14, 2008 @ 9:51 am
  13. Silence! I never make mistakes!

    Comment by tarran — February 14, 2008 @ 9:57 am
  14. You moved to Massachusetts, didn’t you? :)

    Comment by UCrawford — February 14, 2008 @ 10:09 am
  15. Shrugs, as I said, FDR brought us the fascist state. Bush is just the incremental inheritor of it.

    Sorry, an undeclared war without congressional approval is wrong, regardless of how much you do, or do not, like the enemy country. While Bush has fought a war in Iraq that I disagree with starting in the first place, at least he had congressional approval. Hindsight to decide that the North Atlantic naval war of 1940-41 was okay because the Nazi’s were bad is justifying a bad deed, not establishing a good deed.

    You know, for all that Bush has used “the other” to gain power, neither he nor his administration have actually demonized them with racial epithets, racial stereotyping, etc. The Japanese and German fascists were threats, yes. However, they couldn’t actually threaten us substantially in the near term. And once our industry was engaged, the outcome of WWII was pretty much ordained.

    I’m amazed, with the violation of the property rights of the Nisei, that you think that the “internment camps” were not major civil rights violations. They lost their freedom of movement and personal liberty, had their speech completely censored and had their property rights massively violated. It’s not just that they were interned. They posed no threat, had never acted in a criminal fashion and there is not one single case of established Nisei sabotage or spying to support the Japanese war effort, even though many movies have tried to implicate that.

    At least at Gitmo the small number of people we are detaining have, for the most part, been in combat against us. The reality is, if they were called prisoners of war and this was a declared war there would be little to object to. That doesn’t mean, by the way, that I excuse some of the things that have happened there. I’m simply pointing out the difference between the WWII “internment camps” that housed American residents and citizens who had not committed any crime other than being Nisei Japanese-Americans and Gitmo.

    I think you need to check your thinking on FDR in that area. There’s no excuse, none, for the massive violation of the personal rights of hundreds of thousands of American residents and citizens. Not to mention that I consider your scale comment to be aligned with Stalin’s “a million deaths is a statistic” comment. More violations is worse, not just a difference of scale.

    Medicare Part D is not even comparable to Social Security. It’s completely incremental. Social Security tied EVERY SINGLE citizen and resident nearly irrevocably to the US federal government. Medicaid and Medicare would have been unthinkable without Social Security.

    About using Iron Crosses vs. Medal of Freedom. Yeah, helping out the suck ups is bad. But silencing dissent is much worse. Come on now.

    As for my “Nuremberg Rallies” comment, read this.

    As far as the OSS goes, there’s a couple of different books I can recommend. I will dig ‘em out. Look into the OSS in Indochina, not Europe. Going along with the theme of the FDR administration as racist against Orientals, the OSS secret war in Asia was dramatically different than Europe AND something that no one ever talked about. The Pacific war was vastly different in terms of what was acceptable and the level of atrocities and so forth. The US war in Europe was very civilized, over all. Not so the war in the Pacific. Don’t buy into the glory that hollywood shows.

    And seriously, about citing specifics, not rhetoric, how about you and Napolitano and so on not blowing the Bush administration all out of proportion. This administration has been bad, but less abusive of rights during wartime than Wilson, FDR, Truman, LBJ or Nixon. And less jingoistic, racist and propagandist than those administrations. To me this is more BDS, although not as bad as the far left. I can’t stomach Bush, but I can try to be objective about reality.

    Comment by Adam Selene — February 14, 2008 @ 11:26 am
  16. And the banking holidays enabled significant theft of property by the banks, and the Federal Reserve. FDR was wrong and acting on bad advice. That was a back room deal made in the late of the night. You can find references to it in things Harry Hopkins wrote later. You can also find that FDR essentially made an emotional decision based on his paternalist, fascist approach to government.

    Comment by Adam Selene — February 14, 2008 @ 11:31 am
  17. In my view, FDR was far and away the worst violator of the Constitution for the reasons Adam has expressed as well as others. FDR had no regard whatsoever for the Constitution if it got in the way of one of his policy ideas. All of his solutions were big government solutions. Most every big government problem we face today can be traced either directly or indirectly to FDR. Like Adam said, Bush is just the latest inheritor to FDR’s big government legacy. Whoever the next president is, s/he will add to it and we’ll probably be saying that the 44th President has “shown less fidelity to the Constitution than any president since Abraham Lincoln.”

    I think Napolitano’s overall point is that we have to always remain vigilant with regard to our liberties no matter who is in the Oval Office, the congress, or the Supreme Court.

    Comment by Stephen Littau — February 14, 2008 @ 12:58 pm
  18. Adam,

    You know, for all that Bush has used “the other” to gain power, neither he nor his administration have actually demonized them with racial epithets, racial stereotyping, etc.

    Not openly, since society now frowns on open stereotyping, they’re just sneakier about it by using euphemisms to define the “white man’s burden” they think it’s our job to shoulder.

    I’m amazed, with the violation of the property rights of the Nisei, that you think that the “internment camps” were not major civil rights violations.

    I never said that, nor do I believe that those camps were not violations of civil rights. They were inherently wrong and FDR’s decision was appalling. You called them “concentration camps”, which they were not. People were not executed on a mass scale in them as they were in Nazi Germany. The Nisei were also not tortured for information as detainees apparently have been in Guantanamo. I said that you were cherry-picking facts to bolster your argument, which you did.

    They posed no threat, had never acted in a criminal fashion and there is not one single case of established Nisei sabotage or spying to support the Japanese war effort, even though many movies have tried to implicate that.

    http://www.fas.org/irp/ops/ci/docs/ci2/2ch2_a.htm

    There was a Japanese intelligence presence in the United States on the West Coast and in Hawaii. The government’s response (interning the Nisei and Issei) was an unconstitutional and abhorrent overreaction but to insist that there was no threat at all is disingenuous.

    At least at Gitmo the small number of people we are detaining have, for the most part, been in combat against us.

    Really? And your conclusion is based on what? The government’s word that they’re guilty, which the detainees are unable to challenge in any court except a military tribunal where they have no meaningful legal representation, little to no ability to call witnesses on their behalf and where hearsay and evidence obtained by torture can be submitted as evidence by the prosecution? As someone who worked in a war zone I can clearly state that the military arrests the wrong people all the time, sometimes for offenses no more egregious than the detainee being related to a guy we’re looking for, or being in the area of a guy we’re looking for, or having a similar name. The military detainee and tribunal system is inherently flawed…even the military’s lawyers have been fairly jaundiced in their view of it:

    http://www.msnbc.msn.com/id/19375738/

    http://www.nytimes.com/2006/09/16/washington/16jags.html

    The reality is, if they were called prisoners of war and this was a declared war there would be little to object to.

    If they were called “prisoners of war” it’s highly unlikely that the President would be willing to advocate “aggressive interrogation” methods be used against them because that would be a clear violation of international law. Instead he set up the category of “enemy combatants”, the qualifications for which he alone has the authority to determine, and the implication of which is that said “enemy combatant” (U.S. citizen or not) has no human rights. I don’t seem to recall FDR claiming that Nazi and Japanese POWs had no human rights.

    There’s no excuse, none, for the massive violation of the personal rights of hundreds of thousands of American residents and citizens.

    You’re right, there isn’t. There’s also no excuse for most of what Bush has done in the “War on Terror” either in regards to human rights. Ultimately our dispute is a matter of opinion over who is worse…Bush is on the record as advocating the torture of prisoners, FDR isn’t. So as far as I’m concerned, Bush is worse because that’s about as clear a disregard for human rights as you’re going to get.

    Not to mention that I consider your scale comment to be aligned with Stalin’s “a million deaths is a statistic” comment. More violations is worse, not just a difference of scale.

    Actually, since I oppose both a few wrongful deaths at the government’s hands as much as I oppose a million wrongful deaths at the government’s hands I think you’re tossing a straw man out there. Bush conducted a poorly-planned invasion and occupation of a country (Iraq) unnecessarily that has to this date resulted in the deaths of approximately 4,000 U.S. soldiers and untold numbers of Iraqis, turned Iraq over the Iranians, and kicked off a religious war that threatens to destabilize the entire region. As far as I’m concerned, he’s more of a murderer than FDR ever was because every single death caused by the Iraq War is a direct result of Bush’s decision to go in…unprovoked.

    Medicare Part D is not even comparable to Social Security. It’s completely incremental. Social Security tied EVERY SINGLE citizen and resident nearly irrevocably to the US federal government. Medicaid and Medicare would have been unthinkable without Social Security.

    Give it a few years.

    About using Iron Crosses vs. Medal of Freedom. Yeah, helping out the suck ups is bad. But silencing dissent is much worse. Come on now.

    There is no difference between what FDR did and what Bush has done every time an Iraq supplemental funding bill has come up, or when the PATRIOT Act came up, or when Congress criticizes what Bush does. He basically claims that anyone who opposes him wishes harm on the troops.

    As far as the OSS goes, there’s a couple of different books I can recommend. I will dig ‘em out. Look into the OSS in Indochina, not Europe. Going along with the theme of the FDR administration as racist against Orientals, the OSS secret war in Asia was dramatically different than Europe AND something that no one ever talked about. The Pacific war was vastly different in terms of what was acceptable and the level of atrocities and so forth. The US war in Europe was very civilized, over all. Not so the war in the Pacific. Don’t buy into the glory that hollywood shows.

    Oh, I’m well aware of the differences between the two wars. Not to excuse human rights abuses on our part, but all battlefields tend towards reciprocity and the Japanese…well, let’s say that they weren’t overly gracious towards POWs or civilians. Toss out the names of the books and I’ll probably give them a read…I’ve got a long reading list right now, but I enjoy all books about military history so I’ll get to them eventually and be objective about it. I’m just not willing to debate the morality of the OSS based on vague accusations (because there are plenty who try to paint an inaccurate picture for the other side too).

    Comment by UCrawford — February 14, 2008 @ 1:12 pm
  19. And just to be clear, I think FDR was a horrific president and I despised most of his policy…not as much as my grandparents, of course. They’d go off on a rant if you said anything nice about him. Of course that side of the family was always a little extreme…on the day John Kennedy was assassinated my grandpa’s brother apparently went down to his local bar and bought rounds for the house.

    Comment by UCrawford — February 14, 2008 @ 1:15 pm
  20. =====
    The US war in Europe was very civilized, over all. Not so the war in the Pacific.
    =====

    Hah! This is an extreme simplification, and generalizing the whole of Europe at the time.

    The Western Allied powers – Britain, France, the US etc – in the European theatre were civilized in their conduct, and even the Nazis were fairly humane towards the Allied forces.

    Things couldn’t be more different for the poor sods just East of Germany, who *weren’t* signees to the Geneva Convention. Poles, Serbs, Roma, Russians, Jews obviously, were not treated in a civilized manner. I don’t just mean the Holocaust, or the lesser known extermination of over 3 million Soviet POWs from ’41 in concentration camps through complete neglect, but the attitude towards civilian welfare. Massacres of civilians in Poland were extremely common, not only by the infamous SS Dirlewanger Bridgade but by regular units as well. Over 150,000 civilian Poles were killed in the first month of the country’s invasion.

    The Soviets were no better. After the conquering the Eastern realms of Germany, mass rape and slaughter of civilians was common place, and German civilian refugee columns were sometimes unfortunate enough to be gunned and mowed down by Red Army tanks.

    I would’ve preferred to be an American in a Japanese internment camp than a Russian Soviet in a Nazi internment camp. A 1 in 3 chance of survival is better than actually being exterminated.

    Comment by Y. Zaus — February 14, 2008 @ 2:48 pm
  21. Y. Zaus, did you see me say “The US war in Europe …”?

    Comment by Adam Selene — February 14, 2008 @ 4:03 pm
  22. UCrawford, all I have to say is you are nitpicking the followers of the man who established fascist America. Stop and think about that for a minute. Who’s worse, the guy that made it institutional, or the people who incrementally evolved the institution?

    Medicare, Medicaid, NCLB, all just evolution. Without Social Security, the NRA, the Switch in Time, WWII, etc. none of the rest would have been enabled institutionally.

    Comment by Adam Selene — February 14, 2008 @ 4:08 pm
  23. In essence, I believe your proximity to Bush is blinding you to the true horror of what FDR brought to this country in the 1930′s and 40′s.

    Comment by Adam Selene — February 14, 2008 @ 4:10 pm
  24. Adam,

    In essence, I believe your proximity to Bush is blinding you to the true horror of what FDR brought to this country in the 1930’s and 40’s.

    Perhaps, and my opinion on it may change down the road, but our entire argument here is really a subjective one based on personal opinion of who’s worse between two presidents who, when you get right down to it, are both pretty fucking horrific. You weight the despicable socialist policies that FDR installed higher than I rate higher the open lack of respect for human rights (by attempting to legalize torture) that Bush has pushed and neither of us are probably going to convince the other that they’re wrong. Ultimately we’d probably agree that they should both rot in Hell. The only bone of contention I’d have with your argument is that I disagree that without FDR none of these abuses would be possible, because (as Napolitano pointed out) abuse and subversion of the Constitution is a consistent practice by the executive branch all the way back to John Adams…if FDR hadn’t installed all of these policies, who knows what future presidents would have attempted? All governments eventually attempt to consolidate greater power for themselves, not just our own.

    Comment by UCrawford — February 14, 2008 @ 4:33 pm
  25. Honestly, most of Bush’s crimes pale in comparison to Abraham Lincoln’s. Remmber that ex-Democrat congressman he had deported? The hundreds of people held incommunicando despite Congress not having suspended habeas corpus? Not to mention the advocacy for total war, where the U.S. army attacked not only the confederate army but also the civilian population.

    With that being said, I agree with Adam in that these arguments rapidly become pointless. It’s like getting angry in a debate over the question of who was more evil, Hitler or Stalin. Both were evil, and reasonable people can disagree.

    Comment by tarran — February 14, 2008 @ 8:23 pm
  26. tarran,

    Ummm…actually I think you were agreeing with me. I was the one who said it’s kind of a pointless argument :)

    Comment by UCrawford — February 14, 2008 @ 9:58 pm

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