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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

Who Writes the Laws?

4 days ago

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It is distressing for those of us who believe that the Constitution means what it says to observe the destruction of liberty caused by vaccine mandates.
On one side of this destruction are those whose opposition to vaccines finds comfort in the executive orders of Texas Gov. Greg Abbott, who purported to prohibit private businesses in Texas, from mom-and-pop stores to Fortune 100 conglomerates, from requiring their employees to prove COVID-19 vaccinations in order to use the employer’s private property.
On the other side of this chasm are supporters of President Joseph R. Biden, who announced last month that he plans to order the Department of Labor to compel all employers in America of 100 or more persons to require their employees to prove

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When Are Secrets Not Secret?

11 days ago

“Three people can keep a secret if two of them are dead.”— Benjamin Franklin (1706-1790)
Last week, President George W. Bush’s torture regime reared its head in an unusual argument before the U.S. Supreme Court.
In 2002, Abu Zubaydah was captured by a militia in Pakistan and handed over to the CIA, which brought him to Poland where, under the supervision of CIA agents and American psychologists, he was brutally tortured until his removal to the Guantanamo Bay Naval Base in Cuba in 2006.
The Bush administration argued that Zubaydah was a high-ranking member of al-Qaida who possessed information needed to fight the war on terror. After his torture produced no actionable information, the CIA told the Department of Justice and the Senate that Zubaydah was not a member of

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A Brief History of the Law of Personal Privacy and Bodily Integrity

18 days ago

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As more governors issue so-called mandates requiring municipal and state employers, as well as private employers and public accommodations, to require their employees and patrons to be vaccinated against COVID-19, they are being challenged by arguments based on personal privacy and bodily integrity.
The former argues that personal medical decisions are protected by the right to privacy, which is a natural right that supersedes governmental needs. The latter argues that since we each own our bodies, we can decide what goes into them. Both the personal privacy and the bodily integrity arguments recognize that the government can only trump fundamental rights if it can prove fault at a jury trial.
Thus, a case where an infected and

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Voluntary Servitude

September 23, 2021

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Two weeks ago, President Joseph R. Biden announced his intention to order the Department of Labor to compel all employers of more than 100 persons to require all their employees to be vaccinated against COVID-19 or be fined $14,000 per day for each unvaccinated employee. The Department of Labor will collect the fines.
Biden’s legal advisers probably informed him that the federal government is without authority to compel individuals directly to receive vaccinations, and if it were, the compulsion would need to come from Congress — which writes the laws — not from the president, who enforces them.
But the same advisers no doubt told the president that the feds are possessed of authority to tell employers whose

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Twilight’s Last Gleaming

September 16, 2021

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“This is not about freedom or personal choice.”— President Joseph R. Biden, Sept. 9, 2021
It was scandalous and infuriating to hear President Joseph R. Biden argue last week that his so-called vaccine mandates somehow have nothing to do with freedom or personal choice. In saying that, he has rejected our history, our values and the Constitution he swore to uphold.
He made his ignorant statement while outlining his plan to have the Department of Labor issue emergency regulations requiring every employer in America of 100 or more persons to compel all its employees to receive a vaccine against COVID-19, or the employer will be fined.
He claims the authority to issue these orders under the 1970 Occupational Safety and

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When the Constitution Fails Us

September 2, 2021

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I have been writing for years asking if we still have the U.S. Constitution. That issue has come into sharper focus in the past 18 months as mayors and governors have created dictatorial powers and exercised those powers to interfere with personal autonomy in America. They have done this in utter disregard for the freedoms protected by the Constitution they have sworn to uphold by asserting that public health trumps personal liberty.
Here is the backstory.
Government is essentially the negation of freedom. If the values underlying the Declaration of Independence, the Constitution and the Bill of Rights — maximum personal liberty and minimal government — are to be taken seriously, then we all know that government has

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Freedom in the Coming Time of Madness

August 5, 2021

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Sadly, we are approaching a time in America during which our elected public officials will assault the liberties we have hired them to protect. Whatever the cause, the government will soon blame its failures to contain a virus on a small portion of the population and then impose restrictions on the inalienable rights of all of us.
We cannot permit this to happen again.
During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons, he was rebuked afterward by a unanimous Supreme Court. The essence of the rebuke was that no matter the state of difficulties — whether war or pestilence — the Constitution

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What Happens When the Government Breaks Its Own Laws?

July 29, 2021

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In October of 2020, 14 people were arrested in Michigan and accused of being participants in a plot to kidnap Gov. Gretchen Whitmer. The governor had imposed draconian restrictions on religious, travel and commercial activities as a means, she claimed, to stem the spread of COVID-19. All of her restrictions were eventually found by courts to be unconstitutional under both the Michigan and the U.S. Constitutions.
Sixteen plotters were supposedly planning to try the governor in a makeshift court and, if convicted, to impose some sort of punishment. Before the plotters could spring into action, the FBI arrested 14 of them. Two plotters were not arrested since one of them was a paid FBI informant and the other was an

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Does the Constitution Mean What It Says?

July 15, 2021

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“No person … shall be deprived of life, liberty, or property without due process of law.”— Fifth Amendment to the U.S. Constitution
Abdulsalam al-Hela is a 53-year-old Yemeni cleric who has been incarcerated by the United States at the Guantanamo Bay Naval Station in Cuba since 2004. He has not been charged with any crime. His case has a long and complex legal history, but it is instructive to all who believe that the Constitution means what it says.
Hela is represented by competent counsel who have filed numerous petitions in his behalf asking the courts to compel the government to comply with the Constitution and justify his confinement. The underlying constitutional principles here are due process and habeas

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In Defense of Tucker Carlson

July 8, 2021

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In March 2017, I received a tip from a friend in the intelligence community that the British Government Communications Headquarters, or GCHQ — the United Kingdom’s domestic and foreign spies — had been asked by the CIA to spy on candidate Donald Trump during the 2016 U.S presidential election campaign. He elaborated that Trump’s claim that “someone tapped my wires” was essentially true. The tip was potentially explosive, so I ran it past two other friends in the intelligence community, and they confirmed it.
When I went public with this, all hell broke loose in my professional life. The British spies denied spying on Trump, who by now was the president of the United States. Former Obama administration folks denied

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Can the President Kill?

July 1, 2021

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Last weekend, President Joseph R. Biden Jr. ordered the U.S. military to bomb targets in Syria and Iraq in an effort “to send a clear and unambiguous deterrent message” to Iran. It is apparently the belief of the Biden administration — as it has been with Biden’s three immediate presidential predecessors — that the U.S. has the moral and legal authority to destroy any target outside the U.S. with financial or political or military ties to Iran.
Morally, the U.S. can only use force defensively or to repel an imminent attack. When asked for the legal authority for an offensive attack, a Pentagon spokesperson stated that it could be found in Article 2 of the U.S. Constitution. Yet, it is not there.
Governments love war.

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Joe Biden and the Blessed Sacrament

June 24, 2021

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The dispute over whether Roman Catholics who facilitate abortions should be permitted to receive the Blessed Sacrament appears to be coming to a head as President Joseph R. Biden Jr., a public Roman Catholic and public abettor of abortion, continues to attend Mass regularly and receive.
The Church has condemned abortion as being among the gravest of sins. To Catholics, the baby in the womb is a distinct human being who enjoys the right to live, and the Blessed Sacrament is not a symbol; it is substance. It is the body, blood, soul and divinity of Our Lord and Savior Jesus Christ, and there are necessary preconditions to its reception.
Can a person who facilitates killing a class of innocent human beings worthily

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The Only Privacy the Feds Protect is Their Own

June 17, 2021

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Last week, The New York Times revealed that in late 2017 and early 2018, prosecutors in the Department of Justice persuaded a federal grand jury to subpoena the telephone, email and texting records of about 20 people, including two members of Congress and their families, staffs and investigators, and one of the minor children of a staff member. Also subpoenaed were the records of Donald F. McGahn II, then the White House chief counsel, and his wife.
In all, the government sought data on 73 phone numbers and 36 email addresses. The subpoenas identified the targets only by telephone number and computer identification number.
The subpoenas were served on Apple, the custodian of these records. Also

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Can Federal Judges Alter the Constitution?

May 13, 2021

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“No person shall be… deprived of life, liberty, or property without due process of law.” — Fifth Amendment to the U.S. Constitution
Last year, a detainee at the U.S. Naval Base at Guantanamo Bay, Cuba, filed a writ of habeas corpus in a federal district court in Washington, D.C. — to which all cases from Guantanamo have been assigned — and it was denied because he was not in the United States.
A writ of habeas corpus is the ancient individual right of every person confined by the government to require the government to justify the confinement under the law to a neutral judge. That right is guaranteed by the Constitution. This is so because the framers, who knew of summary incarceration by

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More Government Spying and Lying

May 6, 2021

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Twice last week, the federal government’s unconstitutional spying on ordinary Americans was exposed. One of these revelations was made by a federal judge in Washington, D.C., who wrote that the FBI is still using warrantless spying in criminal cases, notwithstanding the Constitution and federal laws. The other revelation was a surprise even to those of us who monitor these things — the United States Postal Service acknowledged that it has been spying on Americans.
Here is the backstory.
The modern American security state — the parts of the federal government that spy on Americans and do not change on account of elections — received an enormous shot in the arm in 1978 when Congress enacted the

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Unconstitutional Debt and Future Generations

April 29, 2021

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Earlier this week, President Joseph R. Biden Jr. asked Congress to raise taxes and increase borrowing so his administration can spend $2.3 trillion — on top of the $1.9 trillion Congress authorized two months ago for so-called COVID relief — for thousands of projects he calls “infrastructure.” All this is in addition to the $2 trillion that the government borrows annually these days just to make ends meet.
These are serious numbers of dollars, the repayment of which will have seriously unpleasant consequences for future generations of Americans. Indeed, under Biden’s administration, the feds will borrow three times what they collect in taxes. This is not a new phenomenon, but it exacerbates the

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Big Tech and Free Speech

April 22, 2021

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A colleague recently asked me if I approved of Big Tech censoring political and cultural voices on their platforms. My colleague believes — as do I — in natural rights, minimal government and that owners of private property can use it as they see fit. We both condemned the Big Tech censorship. Then he asked if the government could regulate these platforms. I offered that it could not.
These questions arose from the reported efforts by Facebook to bar from its platforms those who wish to offer scientific, political or cultural arguments against mass vaccinations. Many of these arguments are sound and fascinating. Nearly all are provocative. They are the essence of free speech. Should those who

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The Coming War on Privacy

March 18, 2021

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When Attorney General Merrick Garland was asked at his confirmation hearings earlier this month what his priorities would be if confirmed, he responded immediately that it would be a vigorous pursuit of domestic terrorism. He did not say he would lead vigorous prosecutions, just vigorous pursuits.
This is dangerous business for the Department of Justice because it transforms its role from prosecuting crimes after they happen to predicting who would commit crimes that never happen.
How could the feds predict crimes? They would attempt to do so by a serious uptick in domestic surveillance of broad categories of people based on political and ideological views. The government loves to cast out

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The Power To Make War

March 11, 2021

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Two weeks ago, while the House of Representatives was finalizing its 700-page legislation authorizing the Treasury to borrow and spend $1.9 trillion in the next six months, and the Senate was attempting to confirm more of President Joseph R. Biden’s cabinet nominees, Biden secretly ordered the Pentagon to bomb militias in Syria.
The United States is not at war with Syria. It is not at war with the militias that were bombed, and it didn’t seek or have the permission of the Syrian government to enter its air space and engage in deadly military activities. Biden later claimed that the bombing was conducted as “a lesson to Iran,” another country with which the U.S. is not war.
His campaign promises

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Christmas in America

December 24, 2020

What if Christmas is a core belief in a personal God who lived among us and many times offered a freely given promise of eternal salvation that no believer should reject or apologize for? What if Christmas is the rebirth of Christ in the hearts of all believers? What if Christmas is the potential rebirth of Christ in every heart that will have Him, whether currently a believer or not?
What if Jesus Christ was born about 2,000 years ago in Bethlehem? What if He is true God and true man? What if this is a mystery and a miracle? What if this came about as part of God’s plan for the salvation of all people? What if Jesus was sent into the world to atone for our sins by offering Himself as a sacrifice? What if He was sinless? What if

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Taking Christmas Seriously

December 17, 2020

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God works in strange ways. Last weekend, two friends and I were deeply moved when we saw a theatrical production of Charles Dickens’ “A Christmas Carol.” This is the famous and popular tale of the transformation and redemption of Ebenezer Scrooge from a rasping, grasping old miser into a lovable, generous old man who, late in life, becomes determined to make amends for all his extreme selfishness and his public denunciations of charity.
After a tossing-and-turning Christmas Eve night, during which he has dreams showing him lonely in his youth, showing present suffering he could easily alleviate, and showing future rejoicing at his death, he awakes on Christmas morning a new man. He immediately

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Can the President Pardon Himself?

December 10, 2020

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Most presidential pardons — indeed all pardons that President Donald Trump has issued — have been for specific crimes of which the subject of the pardon has already been charged and convicted. Yet, Trump, never one to be restrained by precedent, has let it be hinted that he might issue prophylactic pardons to relatives and colleagues who have neither been convicted nor charged with any crimes. And he might pardon himself. Can he do that?
The short answer is yes. Here is the backstory.
The pardoning power is expressly and exclusively granted to the president in the Constitution. Article Two, Section 2, Clause 1, states that the president “shall have Power to grant Reprieves and Pardons for

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Here We Go Again

November 19, 2020

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because the law is often but the tyrant’s will, and always so when it violates the right of an individual.” — Thomas Jefferson (1743-1826)
As if nanny state governors had been sleepwalking through the tyrannical shutdowns and their disastrous consequences last spring and summer, as if they were ignorant of the economic destruction of those they barred from going to work or operating their businesses, as if they thought it is lawful to assault natural rights and constitutional guarantees, these same governors are now beginning another wave of interferences with

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Do We Still Have a Constitution?

November 12, 2020

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I have been taking some heat from friends and colleagues for my steadfast defense of personal liberties and my arguments that the Constitution — when interpreted in accordance with the plain meaning of its words, and informed by history — does not permit the government to infringe upon personal freedoms, no matter the emergency or pandemic. For those who agree with me, worry not. We will persevere. For those who trust the government, worry a lot. You are not in good hands.
The purpose of the Constitution is to establish the government and to limit it. Some of the limitations are written in the Constitution itself. Most of the limitations that pertain to personal freedoms are found in the Bill of

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The Government’s Lust To Spy

November 5, 2020

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In 2019, agents of the federal and state governments persuaded judges to issue 99% of all requested intercepts. An intercept is any type of government surveillance — telephone, text message, email, even in-person. These are intercepts that theoretically are based on probable cause of crime, as is required by the Fourth Amendment to the Constitution.
The 2019 numbers — which the government released as we were all watching the end of the presidential election campaign — are staggering. The feds, and local and state police in America engaged in 27,431,687 intercepts on 777,840 people. They arrested 17,101 people from among those intercepted and obtained convictions on the basis of evidence obtained

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What If We Ignore the Government?

October 15, 2020

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What if we all start a return to normal life now that the government says the worst of the pandemic is behind us? What if we all make conscious choices to move about as before or to stay sheltered, based on our own exercise of our own informed free wills and not on the basis of governmental edicts? What if each of us decides if it is healthier to breathe in fresh air from outside or recycled air from under a mask?
What if massive numbers of us make these decisions on our own?
What if the governors’ edicts don’t really carry the force of law? What if governors have assumed the power to tell us how to live from either out of thin air or from unconstitutional and outdated state laws?
What if it is

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Do We Still Have a Constitution?

September 24, 2020

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I have been taking some heat from friends and colleagues for my steadfast defense of personal liberties and my arguments that the Constitution — when interpreted in accordance with the plain meaning of its words, and informed by history — does not permit the government to infringe upon personal freedoms, no matter the emergency or pandemic. For those who agree with me, worry not. We will persevere. For those who trust the government, worry a lot. You are not in good hands.
The purpose of the Constitution is to establish the government and to limit it. Some of the limitations are written in the Constitution itself. Most of the limitations that pertain to personal freedoms are found in the Bill of

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A Constitution of Some Authority

September 17, 2020

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A federal court in Pennsylvania this week has become the first in the nation to rule that the lockdown, social distancing and essential workplace regulations imposed by Gov. Tom Wolf are unconstitutional.
The judge found that the governor’s orders were so inconsistent, so bereft of any rational basis or scientific model, and so ignorant of the Constitution the governor swore to uphold that he invalidated all of them.
Here is the backstory.
The whole purpose of the Constitution has been to establish a federal government and, at the same time, to limit it. Some of the limitations are in the body of the Constitution itself. Most are in the amendments. A prudent study of the founding era makes it

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The Freedom To Pursue Happiness

September 10, 2020

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The governors of all 50 states, and the mayors of many large cities, have assumed unto themselves the powers to restrict private personal choices and lawful public behavior in an effort to curb the spread of COVID-19.
They have done so not by enforcing previously existing legislation but by crafting their own executive orders, styling those orders as if they were laws, using state and local police to enforce those so-called laws and — presumably when life returns to normal and the courts reopen — prosecuting the alleged offenders in court.
It is hard to believe that any judge in America would permit a criminal trial of any person for violating a standard of behavior that has not been enacted

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Has President Trump Incited Violence?

September 3, 2020

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All states have laws that prohibit assault and destruction of others’ property. States and the federal government also have laws that prohibit bystanders from encouraging others to engage in violence. The latter is known as incitement.
When violence has erupted in American streets between groups supporting President Donald Trump and those opposed to him — and he encouraged his supporters to be “much tougher” than the other side and to “hit back” — did his use of intemperate words incite violence?
The use of federal and state incitement laws has a long and sordid history, which nearly always ends with the punishment of those expressing an unpopular viewpoint. From the 1900s to the 1950s, the

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