A few days ago I received in the mail a copy of Judge Andrew P. Napolitano’s new book, The Constitution in Exile: How the Federal Government has Seized Power by Rewriting the Supreme Law of the Land. Napolitano is the author of several books on the Constitution and is frequently seen on TV as Fox Cable News’ Senior Judicial Analyst.
I am beside myself with excitement. First of all, he dedicated the book to Thomas Jefferson, quoting him thus:
"When the people fear the government, there is tyranny. When the government fears the people, there is liberty."
Before the Preface he also quotes President Ronald Reagan:
"The federal government did not create the states; the states created the federal government."
Turning to the table of contents my eyes were immediately drawn to the fourth chapter, "Dishonest Abe." The chapter begins with:
"The Abraham Lincoln of legend is an honest man who freed the slaves and saved the Union. Few things could be more misleading."
Napolitano goes on to explain that the Declaration of Independence clearly argues the moral right of secession. He further describes the importance of the Ninth and Tenth Amendments to the Constitution in limiting the powers of the federal government and implicitly justifying the right of secession, mentioning that several states would not have ratified a Constitution that denied them the right to secede.
Napolitano covers Lincoln’s real agenda–creating a highly centralized powerful federal government dedicated to protective tariffs for Northern industry, corporate welfare, and centralized banking, largely for the benefit of the North at the expense of the South. He
firmly states that
"Federalism has been called one of the greatest contributions of the Founding Fathers to the field of government. Lincoln single handedly voided that contribution."
He quotes Professor Thomas DiLorenzo that
"…the federal government will never check its own power. That is the whole reason for federalism and the reason that the founding fathers adopted a federal system of government….There is no check on the federal government unless state sovereignty exists, and state sovereignty is meaningless without the right of secession. Thus Lincoln’s war, by destroying the right of secession, also destroyed the last check on the potentially tyrannical power of the central state."
Napolitano also notes that Lincoln was much more concerned about collecting the unjust tariff from Southern ports than about slavery, and that slavery only became a primary issue after eighteen months of war and then only for military and political propaganda purposes. He minces no words on Lincoln’s total war on civilians in the South and tyranny against citizens in the North:
"The most egregious violations of civil liberties that Lincoln committed were murdering civilians, declaring martial law, suspending habeas corpus, seizing vast amounts of private property without compensation (including railroads and telegraphs), conducting a war without the consent of Congress, imprisoning nearly 30,000 Northern citizens without trial, shutting down several newspapers, and even deporting a Congressman (Clement L. Vallandigham from Ohio) because he objected to the imposition of an income tax."
Napolitano recites how Lincoln without the consent of Congress ravaged liberty in Maryland in 1861 to prevent its secession.
"In Maryland alone, Lincoln’s troops arrested and imprisoned without trial a mayor, a congressman, and thirty-one state legislators. Even Francis Scott Key’s grandson was not spared. Lincoln took all these actions in the name of preserving constitutional government. It is hard to imagine something more tyrannical than a central government that suppresses life, speech, and political expression with such drastic measures."
Napolitano also describes Lincoln’s defiance of Supreme Court Chief Justice Roger Taney’s writ of habeas corpus in the case of Confederate sympathizer John Merryman. Lincoln had his Generals suspend the Constitutional guarantee of habeas corpus for the whole nation, allowing Lincoln to imprison thousands indefinitely without trial or even stated justification. This only Congress has the right to do in national emergencies.
Of course, Napolitano’s book is not just focused on history. It is focused the the implications that constant erosion of the Constitution and States Rights have on liberty today. Basically, the book is about the struggle between two disparate legal concepts, natural law and legal "positivism." Natural law extends from human nature as Created by God. All rights come from the Creator of humanity, and all laws must therefore conform to the laws of that Creator. They can be implemented only by the consent of the governed. Legal positivism is a fancy philosophical term for statism. All law serves the state, the benefit of the state, and the security of the state. Hence statism is inherently manipulative and ultimately totalitarian.
Much public concern is growing on the unconstitutional tyranny of federal judges, but Napolitano points out that Congress and the Executive branch are ignoring the Constitution as well. Neither seem to regard the Constitution as limiting their power. Without States Rights there is no real check on federal power. Napolitano is not very kind to many of the programs of George W. Bush. He is particularly leery of the Patriot Act, stating "if you allow it, any unchecked government will steal your liberties."
I am excited about several things in this book. Napolitano has dared cut through the prevailing Lincoln myth and idolatry that have distorted our understanding of history and the meaning and heritage of liberty. He has measured our government against the Constitutional measuring line of the Founders and shown how far we have drifted from freedom toward tyranny. The back cover of the book indicates he has recently influenced for good some key opinion leaders in the American media: Bill O’reilly, Sean Hannity, Rush Limbaugh, and Alan Colmes.
At a time when our government is drifting toward the political philosophy of big government of, by, and for big government and big business, it is refreshing to see a judge so influential on public opinion call us back to the Constitutional liberties of the Republic. May this book have great influence in Washington, the States, and with the public. It is a must read for all who would preserve liberty. More than that, it is a book that should be read, studied, and shared. Unless liberty is nourished and its principles shared, we will soon see our unalienable rights vanish without recourse or check into the dark night of Executive, Congressional, and Judicial tyranny.