Constitutional Chaos
I am reading a book called Constitutional Chaos, a book by Andrew P. Napolitano, a former federal judge, who writes about various ways in which the federal government breaks the law.
My first complaint is that he professes a belief in the theory of Natural Law -- that our rights come from God, and that courts may uphold our rights even absent specific laws justifying those rights -- without explaining the inherent problem of who determines what is, and is not, a Natural Law.
The most obvious problem is the right to abortion: Natural Law adherents could come down either way, saying there is an absolute right to abortion because you have control over your own body, or saying there is no right to abortion because you have no right to take away someone else's right to life. Giving the power to the courts to determine the right to abortion based on Natural Law is an impossible task, one that should not be undertaken, because of the complete lack of consensus on the issue.
Now, I am still early in the book, so perhaps he will address this flaw in his argument.
But one flaw I do not expect resolution to is his insistence that lying to criminal suspects is illegal. It is not, and shouldn't be. There's nothing in Natural Law or written law that demands the police to always tell the truth. For example, a cop can tell you he has your fingerprints on the murder weapon, while questioning you, to get you to confess. So what?
He does not even explain what is wrong with it, except to make an unsubstantiated logical leap, saying that if the cops lie to a suspect, and the suspect confesses, that confession is not "voluntary."
And it is telling that in every single case he complains about in the first chapter where the police lied to a suspect, there were other far more serious breaches of actual law: refusal to allow a suspect access to a lawyer after they requested one; making false promises to not prosecute; not informing a suspect of his rights; and so on. If lying on its own is illegal, why does he not show one case where lying is the only issue involved?
And I've got one more bone to pick: he asserts that when the cops break the law to bring in a suspect (such as kidnapping him across state lines, without a warrant) that the cops must be held accountable for this criminal act. I agree. But he seems to think the only reasonable way to do it is to let the suspect go free. What's the point? Now you have all criminals involved free, instead of keeping the suspect, and charging the cops with kidnapping, and putting all the criminals behind bars.
My first complaint is that he professes a belief in the theory of Natural Law -- that our rights come from God, and that courts may uphold our rights even absent specific laws justifying those rights -- without explaining the inherent problem of who determines what is, and is not, a Natural Law.
The most obvious problem is the right to abortion: Natural Law adherents could come down either way, saying there is an absolute right to abortion because you have control over your own body, or saying there is no right to abortion because you have no right to take away someone else's right to life. Giving the power to the courts to determine the right to abortion based on Natural Law is an impossible task, one that should not be undertaken, because of the complete lack of consensus on the issue.
Now, I am still early in the book, so perhaps he will address this flaw in his argument.
But one flaw I do not expect resolution to is his insistence that lying to criminal suspects is illegal. It is not, and shouldn't be. There's nothing in Natural Law or written law that demands the police to always tell the truth. For example, a cop can tell you he has your fingerprints on the murder weapon, while questioning you, to get you to confess. So what?
He does not even explain what is wrong with it, except to make an unsubstantiated logical leap, saying that if the cops lie to a suspect, and the suspect confesses, that confession is not "voluntary."
And it is telling that in every single case he complains about in the first chapter where the police lied to a suspect, there were other far more serious breaches of actual law: refusal to allow a suspect access to a lawyer after they requested one; making false promises to not prosecute; not informing a suspect of his rights; and so on. If lying on its own is illegal, why does he not show one case where lying is the only issue involved?
And I've got one more bone to pick: he asserts that when the cops break the law to bring in a suspect (such as kidnapping him across state lines, without a warrant) that the cops must be held accountable for this criminal act. I agree. But he seems to think the only reasonable way to do it is to let the suspect go free. What's the point? Now you have all criminals involved free, instead of keeping the suspect, and charging the cops with kidnapping, and putting all the criminals behind bars.
"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
Leave a comment