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Andrew P. Napolitano

Andrew P. Napolitano

Andrew Peter Napolitano (born June 6, 1950) is the Senior Judicial Analyst for Fox News Channel, commenting on legal news and trials, and is a syndicated columnist whose work appears in numerous publications, such as Fox News, The Washington Times, and Reason. Having served as a New Jersey Superior Court Judge, he now teaches constitutional law as a Distinguished Professor at Brooklyn Law School. Napolitano has written nine books on constitutional, legal, and political subjects.

Articles by Andrew P. Napolitano

The Dangerous Urge To Do Something

6 days ago

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When tragedy strikes, as it did in two mass killings earlier this month, there is always the urge to pressure the government do something. Governments are animated by the belief that doing something — any demonstrable overt behavior — will show that they are in control. I understand the natural fears that good folks have that an El Paso or a Dayton episode might happen again, but doing something for the sake of appearance can be dangerous to personal liberty.
When the Constitution was written, the idea of owning arms and keeping them in the home was widespread. The colonists had just defeated the armies of King George III. The colonial weapon of choice was the Kentucky long rifle, while British

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A Few Words About Guns and Personal Liberty

13 days ago

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Last weekend’s mass murders in El Paso, Texas, and Dayton, Ohio, have produced a flood of words about everything from gun control to mental illness to white nationalism. Most of those words have addressed the right to keep and bear arms as if it were a gift from the government. It isn’t.
The Supreme Court has twice ruled in the past 11 years that the right to keep and bear arms is an individual pre-political liberty. That is the highest category of liberty recognized in the law. It is akin to the freedoms of thought, speech and personality. That means that the court has recognized that the framers did not bestow this right upon us. Rather, they recognized its preexistence as an extension of our

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The Longest Pleasure

27 days ago

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“Now hatred is by far the Longest pleasure;“Men love in haste, but they detest at leisure.”— George Gordon, Lord Byron
When I was an undergraduate at Princeton University during the height of the Vietnam War, surrounded by fellow students who condemned it and even some who left the country to avoid fighting in it, the mantra used by its supporters was, “America, love it or leave it.” In my misguided “Bomb Hanoi” youth, I uttered this phrase, which I now detest.
The phrase itself — with its command of the government’s way or the highway — admits of no dissenting opinions, suggests that all is well and proper here and insinuates that moral norms and cultural values cannot be improved. The phrase

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The Limits of Free Speech

July 18, 2019

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During the past week, President Donald Trump excited two bitter public controversies by sending and publishing two highly inappropriate and offensively incendiary tweets.
The first of these was aimed at four female members of Congress — each a person of color, and, as members of Congress, each an American citizen. Yet the president said they should go back to the countries from which they came. The second tweet was aimed at Google, which the president argued should be investigated for treason.
The first of these tweets was xenophobic, racist and hateful; the second was just plain ignorant. Together they revealed a level of misguided thinking not heard from the Oval Office since President Richard

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The Constitution, the Census, and Citizenship

July 11, 2019

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Late last month, the Supreme Court ruled on a challenge to a question that the Commerce Department announced it would add to the 2020 census. The census itself has been mandated by the Constitution to be taken every 10 years so that representation in the House of Representatives could be fairly apportioned to reflect population changes.
Over the years, the folks who prepare the census developed an appetite for peering into the personal lives of everyone living in America, and Congress — which has the same mentality as the Census bureaucrats — permitted this. So, the Census Bureau began adding personal questions in the census itself.
The First, Fourth and Fifth Amendments constitutionally limit

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The Myth of Independence Day

July 4, 2019

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The Declaration of Independence — released on July 4, 1776 — was Thomas Jefferson’s masterpiece. Jefferson himself wrote much about it in essays and letters during the 50 years that followed.
Not the least of what he wrote offered his view that the Declaration and the values that it articulated were truly radical — meaning they reflected 180-degree changes at the very core of societal attitudes in America. The idea that farmers and merchants and lawyers could secede from a kingdom and fight and win a war against the king’s army was the end result of the multigenerational movement that was articulated in the Declaration and culminated in the American Revolution.
The two central values of the

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Trump and Health Care Transparency

June 27, 2019

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Many of my media colleagues have been lauding President Donald Trump for signing an executive order earlier this week directing the federal Department of Health and Human Services to require health care providers to inform patients in advance of the true costs of medications and services.
The gist of the president’s order seems universally pleasing. Who doesn’t want to know from a health care provider — your physician, an emergency facility or a hospital — what the likely cost will be to you and what the actual cost of medications was to the provider? We all would like to know that. But does the president have the constitutional authority to order it? In a word: No.
Here is the backstory.
In

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Can Government Punish Twice for the Same Crime?

June 20, 2019

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“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”–Fifth Amendment to the U.S. Constitution
The government in America is out of control.
Last week, this column discussed the unconstitutional efforts of federal prosecutors in Chicago to punish an American citizen for crimes that had not yet been committed. This week, I address the wish of federal prosecutors in Alabama to charge and to punish a man for a crime for which he had already been convicted and punished.
There is no happy ending here. Earlier this week, the Supreme Court of the United States ruled that the same criminal event can trigger two prosecutions, one by the feds and one by the

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Time To Abolish the Government?

June 13, 2019

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While the eyes of the political and media classes were on President Donald Trump as he commemorated the 75th anniversary of D-Day in the United Kingdom and in France last week, and then as we all watched for progress in the tariff war Trump started with Mexico, the Department of Justice was quietly trying to persuade a federal judge in Chicago to abandon first principles with respect to citizenship and sentencing.
The DOJ filed a motion asking a federal judge to strip the American citizenship of one Iyman Faris. Faris, who was born in Pakistan, has been a naturalized American citizen since 1994. In 2001, he pleaded guilty to conspiring to blow up the Brooklyn Bridge and was sentenced to 20 years

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Mueller Stirs the Pot

June 6, 2019

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Last week, special counsel Robert Mueller — who had been appointed by the Department of Justice two years earlier to investigate the nature and extent of Russian attempts to influence the outcome of the 2016 presidential election and to determine, if those attempts did occur, whether the Russians had any willing American collaborators in the Trump campaign — came to the cameras and announced his resignation. He also underscored some of his findings and did so in such a manner as to gin up House Democrats in their march toward impeachment.
Since his nine-minute statement and his subsequent resignation, he has been praised by many in the political class averse to President Donald Trump, and

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What Happened to the Freedom of Speech?

May 30, 2019

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“Congress shall make no law…abridging the freedom of speech,or of the press…”
— First Amendment to the U.S. Constitution
When James Madison agreed be the scrivener at the Constitutional Convention during the summer of 1787, he could not have known that just three years later he’d be the chair of the House of Representatives committee whose task it was to draft the Bill of Rights.
In doing so, he insisted that the word “the” precede the phrase “freedom of speech” in what was to become the First Amendment, so as to reflect its preexistence; meaning, the freedom of speech preexisted the United States. Madison believed that the pre-political rights, which he enumerated in the Bill of Rights, are

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To Impeach

May 23, 2019

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“If the president does it, that means it is not illegal.”–Richard M. Nixon (1913-1994)
The revelation last weekend by Michigan Republican Congressman Justin Amash that he believes the Mueller Report accuses President Donald Trump of impeachable offenses has ignited firestorms in both major political parties on Capitol Hill. Amash’s argument is simple and essentially unassailable, though his fellow congressional Republicans don’t want to hear it and Democrats don’t know what to do with it.
Here is the backstory.
When special counsel Robert Mueller delivered his report to Attorney General William Barr, it was a 448-page tome that effectively summarized nearly two years of work and nearly two

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Once Upon a Time in America

May 16, 2019

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There was a time in American history — nearly all of it up to the presidency of Woodrow Wilson — when the federal government followed basic constitutional norms. With some unique and discrete exceptions, like the Civil War, Congress wrote the laws, the president enforced them, whether he agreed with them or not, and the judiciary interpreted them and assessed their compatibility to the Constitution. This is the separation of powers.
My late friend Justice Antonin Scalia often argued that the constitutionally mandated separation of powers is the most uniquely American and liberty-insuring aspect of the Constitution. James Madison, who essentially wrote the Constitution, believed that tension and

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Did the Attorney General Deceive Congress?

May 9, 2019

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William Barr, the attorney general of the United States, now faces a likely contempt citation for failing to comply with a congressional subpoena and for misleading Congress. This is about the Mueller investigation of Russian interference in the 2016 presidential election. Isn’t the investigation now complete? How did the attorney general’s veracity become an issue and thereby extend the life of the investigation?
Here is the backstory.
When special counsel Robert Mueller completed his 448-page final report of his nearly two-year investigation of Russian interference in the 2016 presidential election, the Trump campaign and its relationships to Russian agents, and the personal efforts of

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Can the Attorney General Defend Presidential Obstruction?

May 2, 2019

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One should expect fireworks this week as Attorney General William Barr testifies before the Judiciary Committees of both the House and the Senate about the investigation and the report of special counsel Robert Mueller regarding Russian interference in the 2016 American presidential election. By now, most folks know that the interference was substantial but don’t seem to care much.
We know from Mueller’s report that Russian intelligence agents engaged in sophisticated cyber warfare against the United States, and we did very little to resist them. The Russians were physically here. They engaged via email and text with many Americans. They ran popular political rallies. They attempted to alter

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Did the President Obstruct Justice?

April 25, 2019

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When the Department of Justice designated Robert Mueller as special counsel to take over the FBI investigation of the Trump campaign in May 2017, Mueller’s initial task was to determine if there had been a conspiracy — an illegal agreement — between the campaign and any Russians to receive anything of value.
When former FBI Director James Comey informed Mueller that he believed Trump fired him because he had declined Trump’s order to shut down the investigation of Trump’s campaign and of his former national security advisor, retired Lt. Gen. Michael Flynn, Mueller began to investigate whether the president had unlawfully attempted to obstruct those investigations.
We now know why Trump was so

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Hope for the Dead

April 18, 2019

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That God, which ever lives and loves,
One God, one law, one element,
And one far-off divine event,
To which the whole creation moves.
—Alfred Lord Tennyson (1809-1892)
When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in pamphlets and editorials and sermons was not “safety” or “taxes” or “peace”; it was “freedom.” And two intolerable acts of Parliament assaulting freedom broke the bonds with the mother country irreparably, precipitating the Revolution.
The first was the Stamp Act of 1765, which was enforced by British soldiers, who used general warrants issued by a secret court in London to rummage

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Hope for the Dead

April 18, 2019

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That God, which ever lives and loves,
One God, one law, one element,
And one far-off divine event,
To which the whole creation moves.
—Alfred Lord Tennyson (1809-1892)
When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in pamphlets and editorials and sermons was not “safety” or “taxes” or “peace”; it was “freedom.” And two intolerable acts of Parliament assaulting freedom broke the bonds with the mother country irreparably, precipitating the Revolution.
The first was the Stamp Act of 1765, which was enforced by British soldiers, who used general warrants issued by a secret court in London to rummage

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Who Will See the Full Mueller Report?

April 11, 2019

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When Attorney General William Barr released his four-page assessment of Special Counsel Robert Mueller’s 400-page report, I was disappointed at many of my colleagues who immediately jumped on board the “no collusion” and “no obstruction” and “presidential exoneration” bandwagons.
As I write, Barr and his team are scrutinizing the Mueller report for legally required redactions. These include grand jury testimony about people not indicted — referred to by lawyers as 6(e) materials — as well as evidence that is classified, pertains to ongoing investigations or the revelation of which might harm national security.
Mueller impaneled two grand juries, one in Washington, D.C., and the other in

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The Affordable Care Act

April 4, 2019

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“If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.” — Justice George Sutherland (1862-1942)
Here we go again. The legal battle over the constitutionality of the Affordable Care Act — Obamacare — will soon be back in court due to the largely unexpected consequences of a series of recent events.
When the ACA was enacted in 2010, it was a stool with four legs. The first was a declaration that access to professional health care treatment — even for preexisting conditions — is a right to be guaranteed by the federal government. Second, that all people in America are legally required to have health insurance or be assessed

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Trump’s Legal Woes

March 28, 2019

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Last Sunday afternoon, U.S. Attorney General William Barr released a letter, which he said summarized the report he had received from special counsel Robert Mueller about alleged crimes committed by President Donald Trump. Barr wrote that the president’s exoneration is complete with respect to any conspiracy between the Trump campaign and Russian intelligence to affect the outcome of the 2016 presidential election. He also wrote that though Trump will not be prosecuted by the Department of Justice for obstruction of justice, the special counsel did not exonerate him.
This is a head-scratcher.
The head-scratcher is why Barr revealed any ambivalence on the part of anyone in the DOJ on the issue of

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Presidential Crimes

March 21, 2019

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“When the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-94)
Legal scholars have been fascinated for two centuries about whether an American president can break the law and remain immune from prosecution. During the Civil War, Abraham Lincoln ordered troops to arrest, without warrant, and incarcerate, without due process, many peaceful, law-abiding journalists and newspaper editors — and even a member of Congress — in the Northern states. Wasn’t that kidnapping?
During World War I, Woodrow Wilson ordered federal agents to arrest people who sang German beer hall songs or read aloud from the Declaration of Independence in public. Wasn’t that infringing upon the

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Trump’s Brazen, Unconstitutional Overreach

February 21, 2019

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Last week, President Donald Trump followed through on a threat he had been making for months. It was not a blistering or insulting tweet. It was not an attack on the press or congressional Democrats. It was an attack on the Constitution.
Here is the back story.
In 2015, Trump began offering that as president, he would build a “big, beautiful wall” along the border of the United States and Mexico and that Mexico would pay for the wall. His stated purpose throughout the 2016 presidential campaign and beyond was that a wall is necessary to stop the onslaught of immigrants illegally entering the United States at places other than lawful ports of entry.
He also offered his personal view that many of

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Chilling Free Speech

February 14, 2019

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While the public discourse has been consumed over the realization that abortion physicians actually let viable babies who survive late-term abortions die — as well as whether President Donald Trump or House Speaker Nancy Pelosi will blink first over the issue of congressional authorization for building a wall at the country’s southern border, to say nothing of the race-and-sex-infused mess at the top of the government in Virginia — a profound free speech issue has been bubbling below the radar.
A former White House communications aide and former Trump campaign adviser who has written a blistering tell-all book about the Trump White House now finds himself in litigation about whether he can

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The Right To Stay Alive

February 7, 2019

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Much has been made lately of language in a recently enacted New York state statute that permits abortion up to the time of birth if necessary to preserve the life or health of the mother. New Jersey has had the same provision for two generations via a regulation of the Board of Medical Examiners.
Sadly, when New York Gov. Andrew Cuomo signed the new legislation into law two weeks ago, he did so in a joyful and celebratory atmosphere. What moral person could find joy in this?
The joyless debate over the issue of how late in a pregnancy is morally or legally too late for abortion was crystalized when the Virginia General Assembly was prepared to vote last week on legislation nearly identical to

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An American Nightmare

January 31, 2019

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Last Friday, on a quiet residential street at 6 in the morning, the neighborhood exploded in light, noise and terror. Seventeen SUVs and two armored vehicles arrived in front of one house. Each vehicle had sirens blaring and lights flashing. The house, which abutted a canal, was soon surrounded by 29 government agents, each wearing military garb, each carrying a handgun and most carrying high-powered automatic rifles.
In the canal were two amphibious watercrafts, out of which more heavily armed government agents came. Circling above all this was a helicopter equipped with long-range precision weaponry and high-powered spotlights.
Four agents approached the front door to the house. Two held a

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More Self-Inflicted Legal Woes

January 24, 2019

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Last week, the investigative arm of BuzzFeed sparked a media frenzy with a report claiming that two federal law enforcement sources had informed its reporters that Michael Cohen, President Donald Trump’s former lawyer and confidant, had told special counsel Robert Mueller that Trump counseled him to lie to Congress about the status of Trump’s attempts to build Trump Tower Moscow.
The BuzzFeed piece also claimed that the sources revealed that Mueller’s folks had received documentary evidence from Cohen to back up his allegations.
The reason for the media frenzy was the realization by House Democrats that counseling someone to lie to a tribunal constitutes the crime of subornation of perjury and,

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Can the FBI Investigate the President?

January 17, 2019

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Last weekend, The New York Times reported that senior FBI officials were so concerned about whatever President Donald Trump’s true motivation for firing FBI Director James Comey was that they immediately initiated a counterintelligence investigation of the president himself.
The Times reported that these officials believed that Trump may have intentionally or unwittingly played into the Kremlin’s hands by firing Comey so as to impair the FBI investigation into what efforts, if any, Russian intelligence personnel undertook in attempting to influence the 2016 presidential election and what role, if any, the Trump campaign played in facilitating those efforts.
Trump gave three public reasons for

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Can the President Alone Build a Border Wall?

January 10, 2019

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When Donald Trump was looking for a catchy phrase during his 2016 presidential campaign to address the issue of immigrants entering the United States unlawfully — a line that would resonate with his supporters — he came up with the phrase “build the wall.” The reference, of course, is to what Trump advertised would be a 30-foot-tall, thousand-mile-long Mexico-financed physical wall along our border with Mexico.
At first, most folks seemed to dismiss this a pie in the sky. Why would the government of a foreign country pay for a wall in the United States built so as to keep its own citizens and residents from entering the United States? The answer: It wouldn’t.
So President Trump changed his

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Office Pool 2019

January 3, 2019

1) On Jan. 1, 2020, Donald Trump will be
fighting an indictment for fraud.
fighting impeachment proceedings.
running for re-election.
no longer president.
2) In 2019, the House Democrats will
drive Trump crazy with subpoenas and investigations.
finally get their hands on Trump’s tax returns.
try to make it more difficult to own a gun.
collectively agree to keep the government within the confines of the Constitution.
3) On Jan. 1, 2020,
the Dow Jones industrial average will be 5,000 points below where it was on Dec. 1, 2018.
the debt of the federal government will be in excess of $24 trillion.
the Federal Reserve will have continued to keep interest rates artificially low.
the United States will be in a major recession that will dwarf the housing crisis of 2008.
4) On

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