Fierce Watchdog of the Constitution


On which broadcast or cable television channel was this said by a regular commentator?

“The attorney general needs to follow the Constitution, whether the Congress authorizes him to or not. And then we will have the rule of law, and civil liberties upheld, and security as well. . . . The bottom line is the government needs to preserve civil liberty. That’s why we have this country.”

The cable channel is Fox Television News, much lambasted by liberals, most of whom don’t watch it. On that network, there is indeed an array of bristling conservative commentators. But also featured in the evenings on Brit Hume’s Special Report are two of the most incisively knowledgeable Washington reporters in any medium—Jim Angle and Carl Cameron.

But what makes Fox unique in all media is its regular senior judicial analyst, Judge Andrew Napolitano, who, so far as I know, has the only regular Constitution beat—with emphasis on the Bill of Rights—anywhere in the news media. And that includes newspapers.

From 1987 to 1995, Napolitano was a judge on the Superior Court of New Jersey, hence the continuing honorific. He also lectures on constitutional law, and on June 27, his blistering censure of George W. Bush—” ‘Enemy Combatants’ Cast Into a Constitutional Hell”—appeared on the Los Angeles Times op-ed page. He wrote:

“The president—using standards not legislated by Congress, not approved by any court, and never made known to the public—has claimed the right to incarcerate enemy combatants until the war on terrorism is over. But when will that be? . . . Who is an enemy combatant? Today, it can be anyone the president wants. And that is terrifying.”

On the same subject, during his commentary on Fox, Napolitano emphasized, “There is no basis in law or history for the president of the United States taking away all the person’s constitutional rights. . . . National defense implies not just defense of real estate, but defense of our values, and our most basic value is the rule of law.”

This protector of the Constitution, in the tradition of James Madison, is heard daily on Fox somewhere between 5 and 6 p.m. on John Gibson’s The Big Story, as well as often on Bill O’Reilly’s bare-knuckles evening hour, where he provides O’Reilly with a much needed education on civil liberties, to little discernible effect. Napolitano is also frequently on mornings during Fox & Friends, and elsewhere on Fox whenever there’s a breaking story requiring legal analysis.

The judge is like the late Supreme Court justice William O. Douglas, in that no footnotes are needed when hearing or reading him. He speaks with uncluttered, precisely knowledgeable passion. But how did he become the most insistent paladin of individual liberties and rights in the news media?

As a judge in New Jersey, Napolitano told me, he saw what some police and prosecutors do to bypass, to say the least, the rule of law. Being on the bench proved to be a more illuminating postgraduate education on abuses of the Constitution in everyday life than what he had learned in law school.

I thought of the doughty judge when Attorney General John Ashcroft—addressing editors, publishers, television officials, and other news professionals on June 19 at an Aspen Institute conference on “Journalism and Home Security”—rather plaintively said:

“We need the help of the news industry, the fourth estate, to inform citizens about the constitutional tools and methods being used in the war against terror. We need the media’s help, for instance, in portraying accurately the USA Patriot Act.”

Well, Judge Napolitano is certainly doing the best he can to expose the dangerously unconstitutional tools in the attorney general’s arsenal.

For instance, the judge has instructed John Ashcroft, on Fox television, that “the Constitution makes no exceptions in prohibiting violations of ‘fundamental liberties of citizens or non-citizens’ on American soil.” The judge was referring to the scathing indictment, by the Justice Department’s own independent inspector general, of Ashcroft’s dragnet roundup of non-citizens in the weeks after 9-11. (That report has been detailed in the Voice in my columns and Chisun Lee’s characteristically perceptive reporting.)

Praising the inspector general’s uncovering of the attorney general’s lawless “tools and methods” in those raids that presumed the imprisoned to be guilty until proved innocent, Judge Napolitano told Fox viewers:

“You might think [the inspector general’s report] came from Amnesty International or the ACLU.” (Elsewhere on Fox, Bill O’Reilly has long been conducting his own unfair and utterly unbalanced war on the American Civil Liberties Union.)

While Napolitano has indeed been informing American citizens about what’s dangerous in the Patriot acts—as well as about Ashcroft’s defiance of the Bill of Rights in his executive orders—the news media, in all its forms, has not been anywhere near as sustained and persistently analytical as Napolitano in educating the public. Most citizens are largely uneducated about their own constitutional rights and liberties, let alone those of others. And journalists are—or should be—educators on what the rule of law is, and specifically how it is being abused by government in Washington and elsewhere.

A month after the September 11 terrorist attacks, Judge Napolitano wrote in the New Jersey Law Journal: “In a democracy, personal liberties are rarely diminished overnight. Rather, they are lost gradually, by acts of well-meaning people, with good intentions, amid public approval. But the subtle loss of freedom is never recognized until the crisis is over and we look back in horror. And then it is too late.”

Never before in our history—in view of the government’s unprecedentedly vast surveillance technology and other resources—have we needed more ceaseless watchdogs over the Constitution. Why, throughout the media including in daily newspapers, are there not more Judge Andrew Napolitanos? See you in a month.