The Constitution in Exile

The Constitution in Exile:How the Federal Government has Seized Power by Rewriting the Supreme Law of the Land is the title of Judge Andrew P. Napolitano's 2nd book. It is the followup to Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Judge Napolitano is currently the Senior Judicial Analyst for Fox News. He became the youngest life-tenured judge for the New Jersey Superior Court. He was adjunct professor of law at Seton Hall Law School. He taught constitutional law & jurispridence. His philosophical view of law is founded in St. Thomas Aquinas' teachings on natural law.

Basically, this book is part history of Constitutional Law in the USA, part criticism of the various branches of the USA Government for their failures to uphold the Constitution & part suggestions for how to get our government back on track.

Unlike a lot of people today, Judge Napolitano sees the true foundation of our country's laws in Natural Law. & that that foundation is stated in America's seminal document, The Declaration of Independence. As the Judge says: "In America, the Declaration of Independence is traditionally refered to as the sheet anchor of our liberties. It does not grant liberties; it publicly pronounces & secures then, just as an anchor secures a boat. Similarly, the Constitution of the United States does not grant rights, but rather recognizes their existance, guarentees their exercise, & requires the government to protect them." (p xxiii) This is what makes Judge Napolitano so endearing to me. He has an accurate understanding of the USA's source of its laws.

In looking at the various rulings of the Supreme Court, the laws passed by Congress & the actions of our Presidents he pulls no punches. He shows where they are right & where they are wrong. & he does so in a non-partisan manner.

He starts out in his Introduction by laying the foundation & thesis for what he is discussing in the book. The intro gives a explanation of what Natural Law is & why it important. He gives the due credit for his understanding of Natural Law to Dr. Charles E. Rice, his professor of constitutional law & jurisprudence at Notre Dame Law School (Dr. Rice currently has a program on EWTN, The Good Code: God's Natural Law.)

In the 1st chapter the Judge looks at how the Constitution came about & what it really says. Chapters 2-16 look at how we went from a government that followed the constitutution to 1 that more often than not, ignores it. As I said, he puts the blame on all 3 branches when they fail to do what they should.

1 of the most interesting chapters for me was Chapter 4: Dishonest Abe. In this he discusses what occured in the Civil War era. He starts by talking about the right of a state to secede from the USA. This is what raises some questions for me. Do I agree with the idea states can secede? Yes, if it meets the conditions set down in the Declaration. I don't think that the circumstances at the start of the Civil War meet that standard. In that, I difer a little from the Judge. He seems to give the states carte blanche to secede whenever they want. The problem there, as I see it, is that if a state doesn't like an amendment to the Constitution, like giving 18 yr olds the right to vote, then they should be free to secede by the Judge's view. This is something I would like to swee him clarify & expand on in his next book. Other than this I agree very much with what he has to say has gone wrong.

The 15th 16th chapters are perhaps the most relevant as they deal with 9/11 & the Patriot Act. There has been a lot of debate in recent days on how terrorists should be treated, tried etc. What rights do they have or don't have? I tend to agree with the concerns expressed by the Judge about the Patriot Act & how it undermines the Constitution.

I have heard several conservative commentators criticise the call to protect the rights of the terrorists. & it scares me. To say that they have no rights is to dehumanize them. Then who next? Abortion & euthenasia has already severly undermined the God given rights to which ever person from conception to death has. Those who are calling for a curtailing of the rights found in the Constitution forget Jesus' admonition to do unto others as you would have them do unto you. & also God's call to love our enemies. That doesn't undermine our right to defend ourselves. But, a people who does not respect the rights of others doesn't deserve those rights themselves.

In the final chapter Judge Napolitano gives some suggestions for how to turn things arround. It includes some amendments to the Constitution. It includes 1 that I have long supported, repealing the 17th Amendment. This amendment changed the way US Senators are selected. They were chosen by the state legislature's until it was adopted. Now they are poularly elected. I still don't understand why the legislatures approved this 1. The house is apportioned by population. It was set up to represent the people's interests. The Senate was set up with 2 members for every state regardless of population. Each state is equally represented. The Senate was set up this way to protect the state's interests. & the lesislatures are the voice of the states interests, not the people directly.

Another amendment that the Judge calls to repeal is the 16th which allows income taxes to be collected. I have come to see that this has to be done to see that a true reform of the tax code comes about & that we go back to the way things were intended.

Many people today, Positivists as the Judge calls them, see the Constitution as a living document. It's meaning can be changed to suit the current whim. In that sense they are wrong. The meaning of the Constitution is the same as it was over 200 yrs ago. But, it can be applied to modern situations because those situations deal with the same basic human rights & responsiblitities that there have always been.

I highly recomend both the Judge's books. They raise some serious questions that need to be faced & dealt with. If not, then what our Founding Fathers began in 1776 may soon come to an end.

(Note: This is my 100th blog to be posted on this site. Given that abortion is 1 of those things that goes against the Natural Law, this book is a very appropriate subject fot this milestone blog.)