The born-again individualist: Fox News Channel's Judge Andrew Napolitano on lying cops, out-of-control government, and his bestselling new book, Constitutional Chaos.

• Author: Gillespie, Nick
• Position: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws - Book Review

As THE HIGHLY rated home to the likes of Abu Ghraib apologist Sean Hannity and the document-shredding constitutional scholar Oliver North, the Fox News Channel is about the last place you think of when it comes to quaint values such as due process, defendants' rights, and restrained government. Yet Fox is home to television's fiercest defender of civil liberties, Judge Andrew Napolitano, the network's senior judicial analyst and a regular on The Big Story With John Gibson, Fox and Friends, The O'Reilly Factor, and other programs. The 54-year-old Napolitano, the youngest life-tenured Superior Court judge in New Jersey history, is an eloquent and outspoken critic of government abuse of power, whether the topic is widespread "testifying" by cops, eminent domain abuse by local and state officials, or the unilateral detention of suspects at Guantanamo Bay.

To get a sense of the judge's commitment to principle, consider this representative exchange between Napolitano and Fox's Tony Snow on a December installment of The O'Reilly Factor. The topic: the State Department's restrictions on the Hezbollah-owned Al-Manar TV.

Snow: Even Supreme Court cases that try to protect the right to say controversial things say that if there's direct incitement [to violence], there can be reason [to ban speech].

If you say to somebody, "Go kill him," and there's an anticipation that somebody's going to do it, that's not legal.

Napolitano: This is speech, pure and simple ... Here's the law. Here's what is legal. All speech is absolutely protected, no matter what it says, when there is time for more speech to rebut it. The First Amendment presumes that we rational adults, Americans, will decide what we want to watch on television and read and listen to.

Napolitano's introduction to political power run amok occurred in high school, when he worked as a summer page for Rep. Peter Rodino (D-N.J.), who gained national fame for his work in bringing Richard Nixon to account during Watergate. Educated at Princeton University and Notre Dame Law School (where he took a particular interest in natural law theory), the never-married Napolitano has taught at Seton Hall, practiced law, and served as vice president and general counsel of Hackensack University Medical Center. After working with Fox President Roger Ailes at CNBC, he went over to his current network in 1998.

He is the author of the new book Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Books), currently perched near the top of Amazon's ratings. It is a sweeping, relentless, and eminently readable indictment of the reckless disregard for individual rights exhibited by law enforcement, elected officials, and the nation's courts. As compelling, it describes Napolitano's personal odyssey from his days of supporting Richard Nixon to becoming a "born-again individualist" after eight years on the Garden State bench, which he left in 1995. Dedicated to Thomas More, the great patron of speaking truth to power, it should be required reading in post-9/11 America.

A frequent presence on the nation's op-ed pages (and an occasional contributor to reason online) and an even more dynamic, animated presence in person than on the small screen, Napolitano sat down to talk with Editor-in-Chief Nick Gillespie in December at Fox News' Washington, D.C., offices.

reason: Your book is called Constitutional Chaos. What do you mean by that term?

Andrew P. Napolitano: The full title is Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. We are in a fit of constitutional chaos when the government views constitutional guarantees as discretionary. As Americans, we order our lives on the belief that we have extraordinary freedoms. We believe those freedoms don't come from the government. They come from our humanity. The government doesn't give freedom; the government under the Constitution is restrained from interfering with it. I can basically say whatever I want about the government. I can basically travel wherever I want to go. I can basically worship however I see fit. If the government comes to the view that those freedoms are discretionary, no matter how noble the stated [reason to restrict them] may be, then we're in a state of constitutional chaos. We will not be able to order our lives based on freedom. We won't know who will be prosecuted or who'll just be swept away.

reason: So where's the trouble?

Napolitano: Chaos in our criminal justice system comes about when the government acts as if it is entitled to a free pass on enforcing the laws. When people who work for the government, whether they're traffic cops or FBI agents, prosecutors or bureaucrats, act with the self-confidence that they are not obliged to obey the law--

reason: Give me a quick example of that.

Napolitano: I am walking out of Mass one day in Washington Square Park in lower Manhattan, and a scruffy guy with some others like him comes up to me and offers me marijuana. I tell him to take a hike. He turns over the collar of his jacket and shows me his New York Police Department detective badge and says, "Have a nice day, Your Honor," so obviously he [and his fellow undercover cops knew who I was]. What were they doing? Selling drugs. Now, there's no exception in the statute. They wanted me to buy drugs (which don't tempt me at all, even though I believe that they should be legal). Their chances of hitting on me were none and none. They just recognized me coming out of Mass, but they were committing a crime in an effort to enforce the law. Selling drugs and attempting to sell drugs in the presence of children, mind you. When the government breaks the law in order to enforce the law, it perverts the process. It becomes a law unto itself. It encourages others to become a law unto themselves, and it becomes a precedent for the government to do that again and again and again.

The government routinely bribes witnesses by giving them something of value in order to influence the witness's testimony. It could be paying the witness's bills--alimony, rent, or mortgage. It could be a direct cash payment to the witness. It could be, and this is the most typical way, forgiving the witness a crime he has committed. When the government does that, it perverts the intellectual integrity of the trial process. It no longer becomes a search for truth. This tactic is of a post-World War II...