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Libertarian | February 20, 2012
Final Hours of Freedom Watch: Panel on U.S. foreign policy
In the final hours of his now-defunct Fox Business show Freedom Watch, host Judge Andrew P. Napolitano held a panel on U.S. foreign policy featuring retired Army Lt. Col. Anthony Shaffer (also author of Operation Dark Heart), retired Army Col. (and political philosopher) Douglas Macgregor, and freedom fighter regular Malou Innocent (foreign policy analyst for the Cato Institute).
Judge Nap and his freedom fighters discussed the role of America’s military might, implementing the same failed military policies time and again, cutting the defense budget, the indiscriminate use of drones, building bases in Australia, false fears over China, the ‘just war’ argument, unconstitutional intervention in Libya and its costs, the supposed Iranian threat (not ignoring the fact that we have them completely boxed in), and Yemen.
War is the health of the state. As James Madison put it in 1795:
Judge Nap and his freedom fighters discussed the role of America’s military might, implementing the same failed military policies time and again, cutting the defense budget, the indiscriminate use of drones, building bases in Australia, false fears over China, the ‘just war’ argument, unconstitutional intervention in Libya and its costs, the supposed Iranian threat (not ignoring the fact that we have them completely boxed in), and Yemen.
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With such legal, military, and foreign policy expertise flying around, Napster and the freedom fighters made for quite the poignant discussion (the entire video is 15:41 and well worth watching).War is the health of the state. As James Madison put it in 1795:
Of all the enemies to public liberty war is, perhaps, the most to be dreaded because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes … known instruments for bringing the many under the domination of the few.… No nation could preserve its freedom in the midst of continual warfare.Libertarians believe in the health of the individual. It’s a policy of talk, trade, commerce, respect, peace and prosperity. Judge Nap echoed those themes (and more) on a nightly basis and will continue to do so regardless of whatever venue Fox places him in. Unfortunately for Freedom Watch, its requiescat in pace.
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Continue reading on Examiner.com Final Hours of Freedom Watch: Panel on U.S. foreign policy – Nashville Libertarian | Examiner.com http://www.examiner.com/libertarian-in-nashville/final-hours-of-freedom-watch-panel-on-u-s-foreign-policy#ixzz1n2mMU4iF
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Andrew Napolitano
From Wikipedia, the free encyclopedia
| Andrew Napolitano | |
|---|---|
| Andrew Napolitano at CPAC in February 2010. | |
| Judge of the New Jersey Superior Court | |
| In office 1987–1995 | |
| Appointed by | Thomas Kean |
| Personal details | |
| Born | Andrew Paolo Napolitano June 6, 1950 (age 61) Newark, New Jersey, United States |
| Alma mater | Princeton University Notre Dame Law School |
| Occupation | Judge Attorney Media Personality |
| Religion | Roman Catholic |
| Website | Biography on FoxNews.com |
Contents[hide] |
[edit] Early life, judicial and academic career
Napolitano was born in Newark, New Jersey. He is a graduate of Princeton University (he was a founding member of the Concerned Alumni of Princeton[1]) and Notre Dame Law School. Napolitano sat on the New Jersey bench from 1987 to 1995, becoming the state’s youngest then-sitting Superior Court judge. He also served as an adjunct professor at Seton Hall University School of Law for 11 years. Napolitano resigned his judgeship in 1995 to pursue his writing and television career.[edit] Media career
Prior to joining Fox as a news analyst, Napolitano was the presiding judge on the television show, Power of Attorney, in which people brought small-claims disputes to a televised courtroom. Differing from similar formats, the plaintiffs and defendants were represented “pro bono” by famous attorneys. The show ran in syndication during the 2000–2001 season.From 2006 to 2010, Napolitano co-hosted a talk radio show on Fox News Radio with Brian Kilmeade titled Brian and the Judge.
Napolitano hosted a libertarian talk show called Freedom Watch that aired daily, with new episodes on weekdays, on Fox Business Channel.[2] Frequent guests on Freedom Watch were Congressman Ron Paul, economist Peter Schiff, and Lew Rockwell. Napolitano has called himself the “Ayn Rand of Fox News” and has also promoted the works of Friedrich Hayek, Milton Friedman and Ludwig von Mises on his program. The show originally aired once a week on Wednesdays at 2:00 pm on Fox News’ Strategy Room. On September 14, 2009 it became a show that airs three to four times a week. On June 12, 2010 it debuted as a weekly show on Fox Business.
Napolitano regularly substituted for television host Glenn Beck when Beck was absent from his program. After Beck announced he would be leaving Fox News, he asked Napolitano to replace him.[3]
He also hosted the talk show Freedom Watch on Fox Business Channel, from 2009 until it was dropped along with several programs in February 2012 when FBC revamped its entire primetime lineup.[4]
[edit] Writing career
In 2004, Napolitano wrote the book, Constitutional Chaos: What Happens When the Government Breaks its Own Laws, a criticism of the American justice system. In the National Review, former federal prosecutor and senior fellow at the Foundation for Defense of Democracies[5] Andrew McCarthy noted that Napolitano had been a mid-level state judge and questioned Napolitano’s knowledge of the federal Constitution, citing what according to McCarthy were numerous errors in Napolitano’s writing on the subject.[6]In 2006, his second book, The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land was published.
A third book, A Nation of Sheep, was released in October 2007.
In April 2009, Napolitano’s fourth book, Dred Scott’s Revenge: A Legal History of Race and Freedom in America, was released.
In March, 2010, Napolitano’s fifth book was released: Lies the Government Told You: Myth, Power, and Deception in American History.
In October, 2011, Napolitano’s sixth book was released: It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom.
[edit] Politics
Napolitano is a pro-life libertarian, more commonly known as libertarian conservatism.[7]Napolitano has called consumer advocate and frequent presidential candidate Ralph Nader a hero of his.[8]
Napolitano believes that the 9/11 incidents including the subsequent collapse of the World Trade Tower buildings in New York City did not take place as the US government has publicly communicated. “It’s “hard for me to believe that” World Trade Center building 7 “came down by itself,” said Napolitano, “twenty years from now, people will look at 9-11 the way we look at the assassination of JFK today. It couldn’t possibly have been done the way the government told us.”[9]
[edit] Personal
Napolitano splits his time living in Manhattan and Sussex County, New Jersey where he owns a farm that produces maple syrup.[10]Napolitano is not related to U.S. Secretary of Homeland Security Janet Napolitano, whom he sometimes jokingly calls “Cousin Janet.”[citation needed]
[edit] References
- ^ Sethi, Chanakya (18 November 2005). “Alito ’72 joined conservative alumni group”. Daily Princetonian. Retrieved 14 January 2011.
- ^ Stelter, Brian (June 13, 2010). “Libertarian Talk, Now on Fox Business Network”. The New York Times.
- ^ Mirkinson, Jack (April 7, 2011). “Glenn Beck To Andrew Napolitano: You Should Replace Me (VIDEO)”. Huffington Post.
- ^ Fox Business Network Cancels Entire Primetime Lineup. The Huffington Post. February 10, 2012
- ^ http://www.defenddemocracy.org/
- ^ “Andrew C. McCarthy on Andrew Napolitano & Lynne Stewart on National Review Online”. Nationalreview.com. 2005-02-23. Retrieved 2011-04-06.
- ^ Nick Gillespie from the March 2005 issue. “The Born-Again Individualist – Reason Magazine”. Reason.com. Retrieved 2011-04-06.
- ^ After Words with Andrew Napolitano, C-Span (2010-06-02)
- ^ “Fox takes heat from left and right over analysts”. CNN. December 1, 2010. Retrieved 2010-12-08.
- ^ “Sussex County maple syrup available”. The Advertiser-News. Straus Newspapers. March 27, 2008. ““We collected 800 gallons of sap from our sugar maples and had it boiled down to 24 gallons of delicious, pure maple syrup that area residents can sample from the local shops that have agreed to carry our glass-jarred, locally made syrup,” said FoxNews commentator Judge Andrew P. Napolitano, proprietor of Vine Hill Farm.”
[edit] External links
- Freedom Watch With the Judge
- Judge Andrew P. Napolitano website
- Brian and The Judge
- Judge Andew P. Napolitano’s bio at foxnews.com
- Andrew Napolitano at the Internet Movie Database
- Draft Judge Andrew P. Napolitano website
- The Judge’s Farm – Vine Hill
Categories:
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- American libertarians
- American Christians
- American political writers
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- American people of Italian descent
- New Jersey state court judges
- People from Newark, New Jersey
- People from Sussex County, New Jersey
- Seton Hall University School of Law faculty
- 1950 births
- Living people
- Fox News Channel people
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Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization. - Contact us
- Privacy policy
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- Mobile viewLIES THE
GOVERNMENT
TOLD YOU
Also by Andrew P. Napolitano
Constitutional Chaos: What Happens When
Government Breaks Its Own Laws
The Constitution in Exile: How the Federal
Government Has Seized Power by Rewriting the
Supreme Law of the Land
A Nation of Sheep
Dred Scott’s Revenge: A Legal History of Race and
Freedom in America
LIES THE
GOVERNMENT
TOLD YOU
Myth, Power, and Deception in American History
by
Andrew P. Napolitano
© 2010 Andrew P. Napolitano
All rights reserved. No portion of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording,
scanning, or other—except for brief quotations in critical reviews or articles, without the prior written permission of the publisher.
Published in Nashville, Tennessee, by Thomas Nelson. Thomas Nelson is a trademark of Thomas Nelson, Inc.
Thomas Nelson, Inc., titles may be purchased in bulk for educational, business, fund-raising, or sales promotional use. For information, please e-mail
SpecialMarkets@ThomasNelson.com.
Library of Congress Cataloging-in-Publication Data
Napolitano, Andrew P.
Lies the government told you : myth, power, and deception in American
history / by Andrew P. Napolitano.
p. cm.
Includes bibliographical references.
ISBN 978-1-59555-266-2
1. Constitutional history—United States. 2. United States—Politics and
government. I. Title.
KF4550.Z9N369 2010
320.520973—dc22
2009051799
Printed in the United States of America
10 11 12 13 14 WC 5 4 3 2 1
This book is dedicated
to the memory of
Senator Barry Morris Goldwater,
who, alone among major party
candidates for President,
promised to shrink the federal government,
and who is the father
the modern American Liberty Movement.
“‘For this I was born, and for this I have come into the world, to bear witness to the truth. Everyone, who is of the truth, hears my voice.’
Pilate said to him, ‘What is truth?’”
— John 18:37
“[M]en are so simple, and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself
to be deceived.”
— Niccolo Machiavelli,
The Prince
“Everything the State says is a lie, and everything it has it has stolen.”
— Friedrich Wilhelm Nietzsche,
Thus Spoke Zarathustra
“Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the
power of the market simultaneously, they may keep the common man in eternal subjection.”
— Henry A. Wallace,
Vice President of the United States
(1941 to 1945)
Contents
Foreword by Congressman Ron Paul
Introduction
Lie #1: “All Men Are Created Equal”
Lie #2: “All Men . . . Are Endowed by Their Creator
with Certain Inalienable Rights”
Lie #3: “Judges Are Like Umpires”
Lie #4: “Every Vote Counts”
Lie #5: “Congress Shall Make No Law . . . Abridging
the Freedom of Speech”
Lie #6: “The Right of the People to Keep and Bear Arms
Shall Not Be Infringed”
Lie #7: “Your Body Is Your Temple”
Lie #8: “The Federal Reserve Shall Be Controlled
by Congress”
Lie #9: “It’s Only a Temporary Government Program”
Lie #10: “I’m from the Government, and I’m Here to Help”
Lie #11: “We Are Winning the War on Drugs”
Lie #12: “Everyone Is Innocent Until Proven Guilty”
Lie #13: “The Constitution Applies in Good Times and
in Bad Times”
Lie #14: “Your Boys Are Not Going to Be Sent
into Any Foreign Wars”
Lie #15: “We Don’t Torture”
Lie #16: “The Right of the People to Be Secure
in Their Persons, Houses, Papers, and Effects,
Shall Not Be Violated”
Lie #17: “America Has a Free Market”
Conclusion
Acknowledgments
Notes
About the Author
Index
Foreword
by Congressman Ron Paul
Andrew P. Napolitano is a true rarity among judges and media personalities: He is a passionate defender of liberty who understands that the
United States Constitution puts strict limits on federal power. Judge Napolitano’s tremendous knowledge of American law, history, and politics, as
well as his passion for freedom, shines through in Lies the Government Told You , as he details how throughout American history, politicians and
government officials have betrayed the ideals of personal liberty and limited government.
Anyone who knows Judge Napolitano understands that he does not pull his punches or excuse any constitutional violations in order to support
any group or political interest. Thus, Lies the Government Told You explains how politicians of both parties have routinely disregarded the
constitutional limits on federal power and violated our natural rights.
One of the most important lessons Judge Napolitano teaches is how many shared premises there are by advocates of big government from both
the right and the left. For example, Judge Napolitano exposes how both the conservatives’ war on marijuana and the liberals’ war on tobacco are
manifestations of paternalism—the idea that government has the legitimate authority to stop adults from doing bad things, like smoking substances
that politicians and bureaucrats do not approve of. Of course, smoking, whether of marijuana or tobacco, does have negative health consequences
—but respecting the right of individuals to be wrong, as long as they do not interfere with the rights of others, is one of the pillars of a free society.
Lies the Government Told You also avoids the all-too-common error of drawing a distinction between “personal” liberty and “economic” liberty,
and focusing on attacks on one type of freedom while ignoring or even supporting attacks on the other category of liberty. When the freedom
movement began in the nineteenth century, supporters of liberty, who were then known as “liberals,” made no distinctions between government
actions that interfered with economic liberties, such as laws infringing upon private contracts, and government actions that restricted personal
liberty, such as limits on the freedom of speech. Supporters of liberty were also likely to understand the grave threat posed to liberty and
constitutional government by a militaristic foreign policy. Thus, they were also supporters of peace.
However, beginning in the Progressive Era, promoters of big government co-opted the rhetoric of the promoters of freedom, even stealing the
label “liberal.” Whereas liberal once referred to a supporter of freedom, beginning in the Progressive Era, the term liberal began to refer to
supporters of the welfare state. The division between supporters of “economic” and “personal” freedoms was accelerated by the Cold War, when
many supporters of free markets allowed their (justifiable) loathing of communism to lead them to embrace militarism abroad and limitations on
personal freedom at home. Thanks to this division between the supporters of personal and economic liberty, it is not uncommon to find opponents
of socialized medicine arguing for the Patriot Act, and opponents of gun control arguing for free speech.
Fortunately, Judge Andrew P. Napolitano is one of a growing number of Americans who support liberty across the board. Thus, Lies the
Government Told You defends all of our freedoms. Readers of this book will find eloquent defenses of private property, the right to keep and bear
arms, and attacks on excessive government regulations along with defenses of free speech, and attacks on unconstitutional wars, the drug war,
and the Patriot Act.
One chapter of this book that is particularly important to me deals with monetary policy. Anyone who has followed my career knows that exposing
and ending the damage done to our prosperity and freedom by the Federal Reserve’s fiat currency system drives much of what I do. While there is
substantial literature explaining the myriad ways the Federal Reserve damages our economy, there is not nearly as much writing that explains how
the Federal Reserve System violates the Constitution and ties the Federal Reserve to the general assault on liberty waged by Big Government.
This book helps fill that gap.
As a congressional representative from a Gulf Coast district who has seen how the Federal Emergency Management Agency (FEMA) fails to
live up to its promise to provide assistance to victims of natural disasters in a timely and thorough manner, I particularly enjoyed Judge Napolitano’s
dissection of the constitutional and practical problems with FEMA.
I have only scratched the surface of the many virtues of this important work. Lies the Government Told You will provide those active in the
freedom movement with much-needed intellectual ammunition. This book can also help open the eyes of those who are yet to recognize the
assaults on our liberty by politicians and bureaucrats. I am pleased to recommend this book to anyone who cares about the direction of this country
and wants to understand how we got where we are, and what we need to do to regain our liberties.
—Congressman Ron Paul, M.D. (R-TX)
Introduction
During the 1980 presidential campaign, a joke made the rounds in the Reagan camp. George Washington, Richard Nixon, and Jimmy Carter die
and go to Heaven. In a chance meeting about how they got there, Washington boasts, “I never told a lie.” Not to be outdone, Nixon proclaims, “I
never told the truth.” A determined Carter can’t resist: “I never knew the difference!”
What is a lie? What is the truth? What is the difference?
One could not begin to count all the words, ink, and paper spent addressing those three questions, even though the answers are implicated in
almost every thought and every word and every act that everyone perceives, utters, and engages upon every day of our adult lives.
Truth is identity between intellect and reality. A lie is a knowing and intentional violation of the truth. The difference between the two often depends
on whether one is in the governing class or the governed class.
We have all come to expect some lying in our lives and have engaged in lying to some extent; perhaps to avoid or postpone a crisis, or to serve a
higher good, or because telling a lie was easier under the circumstances than telling the truth, and the consequences of the lie were harmless. This
is all normal human behavior, and it can range from being critical to existence to being innocuous.
If a ship captain is secretly ferrying innocents from slavery to freedom, and his ship is stopped on the high seas by agents of the government that
enslaved his passengers, should he lie about their true identities? When a coworker asks how you are during a miserable day, should you lie to
avoid a painful but harmless and useless conversation? Can silence be a lie when one has a lawful or moral duty to tell the truth? These are issues
with which we wrestle almost every day.
In a free society, we expect the government to wrestle with them as well, but it does not; it is not concerned with truth. The government lies to us
regularly, consistently, systematically, and daily on matters great and small, but it prosecutes and jails those who lie to it. For example, a male drug
dealer with a heavy foreign accent and minimal understanding of English stupidly tells an FBI agent that his name is Nancy Reagan, and he is
arrested, prosecuted, and jailed for lying to the government. Another FBI agent tells the cultural guru Martha Stewart, in an informal conversation in
the presence of others, that she is not the target of a federal criminal probe, and she replies that she did not sell a certain stock on a certain day.
They both lied, but she went to jail and the FBI agent kept his job.
What is it about the government and its agents and employees that they can lie to us with impunity, but we risk being sent to jail if we lie to them?
Throughout this book, I will suggest answers to these and similar questions. As I do so, you’ll see a chip on my shoulder. I am angry that we allow
the government to lie to us, that we expect it to do so, and even take comfort in the illusions created thereby. When I told friends about the title of this
book, I frequently joked that it would be four thousand pages in length. Most laughed; but none doubted that there have been enough government
lies to consume that many printed pages.
When you recall that the Declaration of Independence and the Constitution of the United States mandate a free and open society, one in which
the government works for us, you can see where the chip on my shoulder came from. It is morally reprehensible for any government to lie to anyone
over whom it has lawful authority. But in a free and open society where we are the employers, and the government workers are the employees,
every government employee—from a public school janitor to a state governor, from a soldier to an FBI agent, from a cop to the President—has a
lawful obligation to be truthful to his or her employers, and it is utterly and completely and unconditionally unacceptable to treat as normal that they
should lie to us.
And yet, treat it as normal we do. Just look at the names of the chapters in this book—from “All Men Are Created Equal” to “Congress Shall Make
No Law . . . Abridging the Freedom of Speech,” from “Innocent Until Proven Guilty” to “Your Boys Are Not Going to Be Sent into Any Foreign Wars”
to “We Don’t Torture”—and you will see the stuff of which historical myth is made. Every one of those well-known, well-worn, well-stated canards is a
goal the government has never reached but claims it has. Each has become a bald-faced lie, a perpetrated myth, a grasp at power, a monstrous
deception. And most of us recognize that.
Why do we believe government-generated myths? Why do we allow the use of myth to enhance government power? Why do we condone the
government’s use of deception to crush our freedom, steal our property, and destroy our lives? And how does the government get away with all
this?
These are the questions we will explore in the coming pages, as we tear through American history from 1776 to 2010, and expose the use of
myth to seize power and the power of deception to delude the public. When the public is deluded by the very folks it has hired to defend its
freedom, the delusion interferes with that freedom by denying us accurate information with which we can decide in whose hands we should repose
government power. Would Americans have reelected FDR had they known that he caused the attack on Pearl Harbor? Would voters have chosen
LBJ, the supposed “peace candidate” in 1964, had they known he was secretly planning to ramp up the Vietnam War? Would George W. Bush
have been reelected in 2004 if we knew he was illegally spying on us, concocting evidence for war, torturing people, and lying about it?
Government lies take on a life of their own since they breed more lies to substantiate the original lies. Government lies induce government
lawbreaking, and government lawbreaking means someone is suffering a loss of life, liberty, or property because of some event not caused by the
person suffering; and it also means that the lawbreaker walks free in the corridors of power to strike again.
Government lies are a direct assault on freedom because, if believed, if accepted as truth, the lies dupe individuals into making choices they
would not make were the truth known. Government lies seduce us into surrendering freedom and accepting unlawful behavior and irretrievable loss
as somehow warranted, and they establish a precedent for similar thefts of freedom and personal loss in the future.
In my previous books, I have targeted government excess. In Constitutional Chaos: What Happens When the Government Breaks Its Own
Laws, I argued that government lawbreaking is a serious, yet hidden problem recognized primarily by those who benefit from or are victimized by it,
and if unchecked, will lead to tyranny. In The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme
Law of the Land, I made the case that the feds have systematically stolen power from the States and freedom from individuals, under the guise of
interpreting the Constitution, and much of that power and many of those freedoms will be impossible to reclaim. In A Nation of Sheep, I showed that
government in America hates freedom, that it defends its power and not our rights, even though our rights are natural, come from our humanity, and
as Jefferson stated, are “inalienable.” In Dred Scott’s Revenge: A Legal History of Race and Freedom in America , I demonstrated that any
government that thinks it can suspend the free will of the innocent is fatal to life, fatal to freedom, and breeds horrors that can last for centuries.
In the pages that follow, I continue with my theme that the government is not your friend. The lies told to us by our own government, and accepted
by our grandparents and our parents and our children, have destroyed the lives, stolen the freedom, crushed the God-given rights, and seized the
property of those who got in the way of official government deception. Why has our government rejected America’s first principles of individual
freedom, guaranteed rights, limited government, free enterprise, private property, and the right to be left alone? And why has it denied doing so?
Before you start reading this book, I suggest you flip back to the quotations I have selected as representational themes of this book and reread
them. Hold me to these themes, and at the end of the book, decide for yourself if I have supported them.
Come with me now on a tour of myth, power, and deception in America; woven into the fabric of our history, perpetrated even as you read this,
and accepted by millions as the norm.
Lie #1
“All Men Are Created Equal”
On July 4th 1776, the thirteen United States of America declared independence from Great Britain and its tyrannical king, George III. The
Continental Congress, in the Declaration of Independence, stated that “all Men are created equal, that they are endowed by their Creator with
certain unalienable1 Rights, that among these are Life, Liberty and the Pursuit of Happiness.” The delegates to the Continental Congress who
signed the Declaration believed that government power is fueled by the consent of the governed, and that its primary purposes are to ensure the
people’s freedom to pursue happiness and to protect their inalienable rights. King George III had never embraced this philosophy, and the bulk of
the Declaration listed the ways in which he had abused his power: Great Britain taxed the colonies without granting them representation, prohibited
them from trading with the rest of the world, and broke its own laws to exploit them. According to Congress, the King left the United States no
alternative but to sever ties with Great Britain and form a new nation with its own government, one that would keep secure its people’s natural rights.
The government that emerged from the American victory in the Revolutionary War, however, did not treat all men equally. The United States
Constitution, for example, contained provisions that implicitly and explicitly recognized slavery’s legitimacy, protected it as an institution, and
insulated it from regulation or interference by the federal government. In fact, the government permitted slavery for almost one hundred years after
Thomas Jefferson wrote the immortal “all Men are created equal” language. It was not until recently that the government’s behavior matched these
words and African-Americans truly became equal under the law.
President Barack Obama stated that it is an American tradition that “all men are created equal under the law and . . . no one is above it.”2 The
implication in that statement is false. It may be true that no one is above the law, but for much of American history, African-Americans were below it.
The Founding Fathers, as brilliant and courageous as they were, lied to us. Abraham Lincoln, the so-called “Great Emancipator,” lied to us. The
Supreme Court of the United States, in upholding Jim Crow laws, lied to us. Thankfully, one of the great things about this country is that over time,
Americans get smarter. We recognize our transgressions and work to correct them. Some of the greatest advances in human rights have come
after some of the greatest assaults on them. After 230 years of exceptional indignity, lawlessness, and bloodshed, we can now say that “all Men are
created equal,” and mean it. But that was not the case in 1776.
Founding Slave Owners
Upon the signing of the Declaration of Independence, 20 percent of America’s population was enslaved.3 Most of the approximately five hundred
thousand slaves living in the United States in 1776 were concentrated in the five southernmost states, where they represented 40 percent of the
population.4 The Founding Fathers owned slaves. In fact, four of the first five American Presidents, including the still-beloved George Washington,
Thomas Jefferson, and James Madison, owned slaves.5
Thomas Jefferson condemned slavery and vehemently opposed its expansion. In his first term in the Virginia House of Burgesses, Jefferson
proposed a law to free Virginia’s slaves.6 In 1774, Jefferson urged the Virginia delegates to the First Continental Congress to abolish the slave
trade.7 According to Jefferson, “[t]he abolition of domestic slavery is the great object of desire in those colonies where it was unhappily introduced.
. . .”8 Furthermore, Jefferson wrote a draft constitution for the State of Virginia that forbade the importation of slaves.9 Also, in a draft of the
Declaration of Independence, Jefferson complained of Britain’s introduction of slavery and the slave trade to the colonies.10
Jefferson also played an integral role in enacting the Northwest Ordinance of 1787, which quickened the westward expansion of the United
States, while also providing that “[t]here shall be neither slavery nor involuntary servitude in the said territory . . .”11 Later, in 1808, President
Jefferson signed a statute prohibiting the Atlantic slave trade.12
Jefferson should be admired for instilling in America the democratic and egalitarian principles that we hold so sacred today. The fact remains,
however, that Jefferson owned slaves. At the time he wrote that “all Men are created equal,” he owned about two hundred slaves, and slavery
played an integral role in his life.13 Slaves constructed his majestic home and even his personal coffin.14
According to Jefferson, African-Americans may not have been inferior to whites, but they certainly were different. In his book, Notes on the State
of Virginia, Jefferson recounted his observations of the physical differences between blacks and whites15 and wrote negatively and positively about
African-American behavior.16 For example, Jefferson noticed that as compared to whites, blacks required less sleep, but were more adventurous
than whites.17 In analyzing their mental capacity, Jefferson observed that blacks had better memories than whites, but could not reason nearly as
well as their white counterparts.18 From his observations, Jefferson concluded that by nature, African-Americans were not as intelligent as whites.19
However, with respect to moral capacity (the “heart,” as Jefferson called it), Jefferson believed that God did create all men equal.20 Furthermore,
Jefferson wrote that “nothing is more certainly written in the book of fate than that [slaves] are to be free,” and he believed that African-Americans
had “a natural right” to pursue freedom.
Moreover, according to the historian John C. Miller, in the Declaration of Independence, Jefferson may have intentionally left “property” off the list
of inalienable rights to pave the road for placing slaves’ human rights above the property rights of their slave owners.21 Alexander Hamilton, a
Founding Father who once owned slaves in New York, and the first United States Secretary of the Treasury, wrote in The Federalist, No. 1, written
for the People of New York, and more broadly, the citizens of the United States, that signing the Constitution “is the safest course for your liberty,
your dignity, and your happiness” (emphasis added). However, the Fifth Amendment to the Constitution states, in part, that “[n]o person shall be . . .
deprived of life, liberty, or property without due process of law” (emphasis added). In ratifying the Constitution, did Congress abandon Jefferson’s
intent? Did it become less sympathetic to human rights? Did the Founders find no shame in condoning slavery as a property right protected by due
process?
Regardless of his ideas on the equality of men, Jefferson believed that blacks and whites could not coexist as equals.22 He feared that if whites
did not treat blacks paternalistically, there would be a race war resulting in the black race overtaking the white.23 Jefferson stated, “We have the
wolf by the ears and we can neither hold him, nor safely let him go. Justice in one scale, and self-preservation in the other.”24 Nevertheless, Thomas
Jefferson freed five of his slaves in his will, and even though Virginia law mandated that freed slaves leave the state within a year of their
emancipation, Jefferson petitioned the Virginia assembly to permit his freed slaves to remain “where their families and connections are.”25 The
Virginia assembly honored Jefferson’s request.26
George Washington, known throughout the ages as the “Father” of his country, was a Southern planter who owned and relied on slaves.27
Washington punished his slaves by whipping or selling them, divided their families so they would work more efficiently, and provided them with as
little means as tolerable.28 He also raffled off the slaves of those bankrupt slaveholders who owed him money.29 Washington’s most gruesome act
as a slave owner came in 1784, five years before he became President of the United States. In that year, Washington hired a dentist to extract nine
teeth from the mouths of his slaves, and implant them into his own mouth.30
During his presidency (1789 to 1797), Washington lived at the President’s House in Philadelphia. In 1780, Pennsylvania had passed “An Act for
the Gradual Abolition of Slavery,” which prohibited nonresidents from holding slaves in the state longer than six months. In an attempt to circumvent
this law, Washington and his wife, Martha Dandridge Custis Washington, neither a permanent resident of Pennsylvania, rotated their slaves in and
out of Pennsylvania so that none of them established continuous residency for six months. This practice violated the Pennsylvania Act, but the
Washingtons were never prosecuted under it.
During the Revolutionary War, however, Washington’s attitude toward African-Americans was markedly different. Washington recruited free
blacks into the Continental Army, and by the time of the Battle of Yorktown, African-Americans constituted 25 percent of the Army. 31 By 1786,
Washington promised never to buy another slave. By the time of his death, Washington found slavery morally wrong, and freed his slaves in his will,
upon the death of his wife, Martha.32 He even expressed a desire to have his freed slaves educated.33
Like Jefferson, however, Washington, did not seek to abolish slavery swiftly, or with any type of urgency. Despite not purchasing a slave after
1786, and eventually freeing his slaves, Washington believed slavery would be abolished by “slow, sure and imperceptible degrees.”34
A Less Perfect Union
The Founding Fathers overtly defended slavery and racism in the United States Constitution. Protecting the institution of slavery was necessary to
gain the South’s support for a new, centralized federal government. It is important to realize that our Constitution legitimized the ownership of some
human beings by other human beings. This was, of course, directly opposed to the Natural Law values of the Declaration of Independence, which
asserted that the rights of “all Men” come from our “Creator” and are thus “unalienable,” absent due process. The Constitution contained express
provisions recognizing slavery’s existence, protecting it as a legal institution, and insulating it from regulation or interference by the federal
government.
Three provisions of the Constitution implicitly recognize the existence of slavery: the Fugitive Slave Clause (Article IV, Section 2, Clause 3), the
Importation Clause (Article I, Section 9, Clause 1), and the Three-Fifths Clause (Article I, Section 2, Clause 3). The Fugitive Slave Clause provides
that “[n]o Person held to Service of Labour in one State” shall be discharged from such labor if he or she escapes into another State. This clause
essentially required the States to return fugitive slaves who escaped into their territory. The courts interpreted this clause as providing slaveholders
with a right to their slave property that no state where slavery was prohibited could qualify, control, or undo.
The Importation Clause in the Constitution forbade Congress from outlawing the “importation of such Persons as any of the States now existing
shall think proper” until 1808. This clause permitted the international slave trade until at least 1808. The United States discontinued the international
slave trade in that year when President Jefferson signed legislation prohibiting it.
The “Three-Fifths Compromise” was the clearest example of the delegates who wrote the Constitution abandoning ethical and moral standards,
and even core values, in order to construct a new federal government. The Northerners wanted apportionment for the House of Representatives to
be based solely on the population of free persons living in each state, whereas the Southerners wanted their slaves to count as whole persons, thus
increasing Southern representation in Congress. The infamous and despicable Three-Fifths Clause emerged from the debate. It provides that
apportionment be determined by the “whole number of free Persons” in each state, minus the number of “Indians not taxed,” plus “three fifths of all
other Persons.” Therefore, the Constitution counted slaves (“other Persons”) only as 60 percent of free, white persons.
In Their Defense . . .
Regardless of their faults, many of the Founding Fathers did not own slaves and recognized slavery’s inherent immorality. Benjamin Franklin, for
example, called slavery “a source of serious evils” and “an atrocious debasement of human nature.”35 In 1774, two years before signing the
Declaration of Independence, Franklin and his fellow Founding Father, Benjamin Rush, formed the Pennsylvania Society for Promoting Abolition of
Slavery.36 John Jay, an author of The Federalist Papers and President of a comparable society in New York, as well as the first Chief Justice of the
United States, declared that “[t]he honour of the states, as well as justice and humanity . . . loudly call upon them to emancipate these unhappy
people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”37
James Madison owned slaves, yet deemed slavery “the most oppressive dominion ever exercised by man over man.”38 Madison noted that the
delegates to the Constitutional Convention “thought it wrong to admit in the Constitution the idea that there could be property in men.”39 In The
Federalist, No. 54, Madison stated that “we must deny the fact, that slaves are considered merely as property, and in no respect whatever
persons.”40
The Founders seemed to believe that slavery would meet its natural demise in the United States. At the Constitutional Convention, a Connecticut
delegate, Roger Sherman, stated, “The abolition of slavery seemed to be going on in the United States. . . . The good sense of the several states
would probably by degrees complete it.”41 George Washington, in a draft of his first inaugural address, expressed the desire for the country to
“reverse the absurd position that the many were made for the few.”42 Just before his death, Thomas Jefferson, referring to slavery, asserted that
“[a]ll eyes are opened, or opening, to the rights of man.”43
The prominent abolitionist Frederick Douglass actually believed that the Constitution created an “anti-slavery government.”44 In 1864, Douglass
wrote, “It was purposely so framed as to give no claim, no sanction to the claim, of property in man. If in its origin slavery had any relation to the
government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed.”45 Technically
speaking, Douglass was absolutely right. The Thirteenth Amendment to the United States Constitution states that “[n]either slavery nor involuntary
servitude . . . shall exist within the United States, or any place subject to their jurisdiction,” yet none of the original text was in any way altered.
It is interesting to note that William Lloyd Garrison, another great abolitionist and editor of The Liberator, a radical abolitionist newspaper,
believed that the Constitution was actually a pro-slavery document. He called the Constitution a “pact with the devil.” Frederick Douglass46 had
admired Garrison, but when Douglass, in 1851, stated his belief that the Constitution could be used to fight slavery, Garrison and Douglass
engaged in a vicious debate in which they communicated through newspapers and letters.
Slavery was a tradition embedded in the culture of the South and played a key economic role there. Its economic importance was the key factor
impeding abolition. Nevertheless, slavery is morally reprehensible, and completely indefensible,47 and the fact that many Americans, including the
Founding Fathers, recognized that it was wrong, in a way makes us even more responsible for the crimes committed against the African-American
race. Frederick Douglass may have been right when he said that the Constitution paved the road for abolition, but it took the United States nearly
one hundred years to take serious action.
Preserving the Union
President Abraham Lincoln, known as the “Great Emancipator,” is widely regarded as a defender of black freedom who supported social equality
of the races and led us into the American Civil War to free the slaves. According to Lincoln, “If slavery is not wrong, nothing is wrong.” 48 Lincoln did,
in fact, view slavery as an evil institution, but did not seek to abolish slavery because it was morally despicable. Rather, he only supported an end to
slavery when he felt it became necessary to win the war.
Lincoln’s first action as President was to persuade the States to ratify a constitutional amendment that would have legalized and preserved the
institution of slavery. The proposed amendment, “The Corwin Amendment,” stated the following: “No Amendment shall be made to the Constitution
which will authorize or give Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of
persons held to labor or service by the laws of the State.” Slavery, to Lincoln, was a “domestic institution” under this Amendment. The Amendment,
of course, was never formally adopted, as Southern legislatures were already prepared to secede from the Union to express their discontent with
federal dominion over their interests.
Lincoln opposed slavery’s expansion into America’s new territories not based on any moral duty to uphold the Natural Law, or the need to right
inherent wrongs. Instead, Lincoln simply wanted to keep African-Americans out of the West and keep the white and black races separate. In 1857,
prior to becoming President, Lincoln expressed his opposition to the Kansas-Nebraska Act, which would have admitted Kansas into the Union as
a slave state: “There is a natural disgust in the minds of nearly all white people to the idea of indiscriminate amalgamation of the white and black
races . . . A separation of the races is the only perfect preventive of amalgamation, but as an immediate separation is impossible, the next best
thing is to keep them apart where they are not already together”49 (emphases added). Lincoln went on to state that “if white and black people never
get together in Kansas, they will never mix blood in Kansas.”50 Moreover, to alleviate racial tension in the United States, Lincoln favored the
deportation of the African-American population to settlements in either Africa or Central America. According to Lincoln:
Racial separation must be effected by colonization of the country’s blacks to foreign land. The enterprise is a difficult one, but where there is a will there is a way . . . Let us be
brought to believe it is morally right and, at the same time, favorable to, or, at least, not against, our interests, to transfer the African to his native clime, and we shall find a way
to do it, however great the task may be.51
When the South began seceding from the Union, Lincoln met with leaders from Missouri, Kentucky, Maryland, and Delaware, using slavery as a
bargaining device. Lincoln promised that the federal government would not interfere with slavery in those states as long as they remained in the
Union. Some border states, albeit temporarily, agreed to remain in the Union. Therefore, it is quite clear that Lincoln was willing to support the
existence of slavery so long as his federal government stayed intact.
Lincoln was reluctant to issue the Emancipation Proclamation. He feared that it would conflict with his goal of “saving the Union,” or rather,
expanding the size of the federal government. In fact, Lincoln actually issued a “Preliminary Proclamation” to the Confederacy on September 22nd
1862, warning the Confederate States that if they continued in rebellion, he would end slavery in the South on January 1st 1863 (the date on which
the Emancipation Proclamation was issued). Therefore, if the slave states had rejoined the Union, Lincoln would have permitted them to keep
their slaves. After issuing the Proclamation, Lincoln declared:
My paramount objective in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it, and if I
could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored
race, I do because I believe it helps to save the Union.52
Furthermore, Lincoln saw the Proclamation as a wartime measure to weaken the South, not as a step toward the abolition of involuntary
servitude. If the slaves were freed, Lincoln believed that they would revolt against their masters and bolster the Union Army. Lincoln publicly
announced that the Emancipation Proclamation was “sincerely believed to be an act of justice, warranted by the Constitution upon military
necessity” (emphases added).
Moreover, the Emancipation Proclamation was rather limited in its scope, and had very little effect by itself. The Proclamation applied only in the
Confederacy, and had no legal justification, as the Confederate states had already seceded. Even after the Proclamation, eight hundred thousand
African-Americans were still enslaved in the border states of Kentucky, Missouri, Maryland, Delaware, and West Virginia, as well as in the North,
with the blessings of the Great Emancipator. In essence, the Proclamation supported slavery after its issuance.
The Union Army forced emancipated African-Americans to enter into yearly labor contracts with their masters to avoid “vagrancy” and “idleness.”
Once they were under contract, the blacks were not allowed to leave their respective plantations without permission. This system of forced free
labor spread throughout the parts of the South that were dominated by the American Army, and lasted until the end of the Civil War.
Lincoln’s Emancipation Proclamation, therefore, achieved little in terms of African-American freedom. The federal government did not officially
recognize emancipation until Congress enacted the Thirteenth Amendment to the United States Constitution on December 6th 1865. By that time,
slavery had been abolished in Missouri, Maryland, Louisiana, and Arkansas; and Tennessee and Kentucky were both in the process of ending
slavery.
Supreme Racism
The Union won the Civil War, and the slaves were emancipated, but African-Americans were far from equal to whites in the United States during
the Reconstruction Era and beyond. The Southern state and local governments enacted Jim Crow laws, with the purpose of segregating blacks and
whites, and institutionalizing the idea that African-Americans are morally and legally inferior to whites. Sadly, the United States Supreme Court
supported Jim Crow through various troubling and openly racist decisions.
The Supreme Court ruled unconstitutional the Civil Rights Act of 1875, which stated in part,
[t]hat all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of
inns, public conveyances on land or water, theaters, and other public places of public amusement; subject only to the conditions and limitations established by law, and
applicable alike to citizens of every race and color regardless of any previous condition of servitude.
This Act was passed pursuant to the Fourteenth Amendment to the United States Constitution, which states, in relevant part: “No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Furthermore,
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the Amendment by “appropriate legislation.” According to the
Supreme Court’s majority opinion in the Civil Rights Case, decided in 1883, the Civil Rights Act of 1875 was unconstitutional because it was not
passed in reaction to discriminatory state legislation.53 The Court held that the Equal Protection Clause applies only to state action, not
discrimination perpetrated by private businesses. Through this decision, the Court essentially condoned private discrimination, providing African-
Americans with no recourse against racist state and local governments that forced white business owners to separate the races.
The case of Plessy v. Ferguson, decided in 1896, was an example of state action.54 In 1890, the State of Louisiana passed the “Separate Car
Act,” a law requiring separate, but “equal” accommodations for African-Americans and whites on railway cars. Homer Plessy, who was only oneeighth
black, but was classified as an African-American under Louisiana law, was convicted under the Act for sitting in a “white” railway car. Plessy
challenged the law as a violation of the Fourteenth Amendment, but the Supreme Court disagreed, in a 7 to 1 decision.
According to the majority, Plessy’s argument falsely assumed that “the enforced separation of the two races stamps the colored race with a
badge of inferiority.”55 As far as the majority was concerned, Louisiana was permitted to pass such a law, so long as the separate
accommodations were “equal.” The Supreme Court also stated that the Constitution does not protect against social differences between the races,
declaring that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.”56
The lone dissenter, Justice John Marshall Harlan, wrote a passionate dissent in which he declared: “[T]here is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law.”57
Unfortunately, Justice Harlan’s opinion did not represent the prevailing view in this country until well after the case of Brown v. Board of Education
of Topeka, decided in 1954, in which the Supreme Court held that segregation of public school students violates the Equal Protection Clause of the
Fourteenth Amendment.58 Separate facilities for blacks and whites, according to the Court, are inherently unequal. Until 1954, the States, with the
Supreme Court’s permission, were free to discriminate against African-Americans who attempted to be accepted as equals in American society.
The Supreme Court, through its decisions in the latter part of the nineteenth century, gave strength to the idea that there existed a color barrier
between blacks and whites, and defied Jefferson’s supposed self-evident truth that “all Men are created equal.”
Toward a “Post-Racial” Era
The United States of America, after a long, dark history of legal slavery and legal racial discrimination, is moving closer and closer to a “post-racial”
era, a time when Americans move beyond racial differences. Nevertheless, as much as politicians would like to believe that we have transcended
race, the race issue is still prevalent in American society. We are still judged on what makes us different from one another, and not as much on what
unites us.
The affirmative action debate is important to explore because it is a current example of distinguishing people based on race and reflects a
modern-day obstacle to Jefferson’s truism. “Affirmative action” is the term describing government policies that take race into account in order to
foster racial equal opportunity, or to right past wrongs. Affirmative action policies are widespread in education, as well as in employment.
In the 1978 case of Regents of the University of California v. Bakke, the Supreme Court held that affirmative action policies in publicly owned
college admissions are constitutional, but institutions cannot employ a “quota system” based on race.59 That is, colleges cannot set aside a certain
amount of seats for students solely for minorities, but they can take race into account as one factor in determining whether an applicant should be
admitted. The Supreme Court recently upheld this decision in 2003, in Grutter v. Bollinger, when asked to assess the University of Michigan Law
School’s conceded racially discriminatory admissions procedures.60
Justice O’Connor, writing for the majority in Grutter, surmised that “25 years from now the use of racial preferences will no longer be necessary to
further the interest [in achieving a diverse student body] approved today.”61 Justice O’Connor’s weird articulation of the Court’s position on
affirmative action raises many questions. It is clear from her statement that racial inequality still exists in this country; that is not disputed. It is also
evident that Justice O’Connor believes that affirmative action policies are not the ideal way to conquer these differences, yet according to her,
some form of affirmative action is presently necessary. No matter how we look at affirmative action, it is a form of racial discrimination; it is
government making decisions based on race. Affirmative action consists of the government, which is supposed to be color-blind, helping some
(who could use the help) and harming others (who harmed no one themselves) based solely on race. It has survived because it is not the typically
historical brand of racial discrimination. It seeks to correct past discrimination against African-Americans, and put them on a level playing field with
whites.
However, Supreme Court Justice Clarence Thomas believes that affirmative action amounts to a “reverse-racism” tool. In Adarand Constructors,
Inc. v. Pena, an affirmative action case decided in 1995, Justice Thomas, in his concurring opinion, stated that “[i]t is irrelevant whether a
government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to
be disadvantaged.”62 Therefore, according to Justice Thomas, all affirmative action programs violate the Equal Protection Clause. Furthermore, in
his dissent in Grutter, Justice Thomas responded directly to Justice O’Connor, and stated that if Michigan’s affirmative action system will be illegal
in 25 years, it must be “illegal now,” for the Constitution “means the same thing today as it will in 300 months.”63
Justice Thomas is correct. The government has no power to make decisions based on race, just as it has outlawed innkeepers, schoolteachers,
landlords, shopkeepers, and even Presidents from doing so. I am loath to endorse the federal regulation of private behavior for reasons I have
articulated elsewhere;* essentially because the Constitution has never given Congress the power to do so. But it can certainly assure that the
States as States, as sovereign governments, respect the Natural Law, which is color-blind. Isn’t it ironic that it took a black man on the highest court
in the land to point this out?
What is it about “all Men are created equal” that we still struggle to implement that statement 235 years after it was written? Do we really
understand today—after a Civil War, constitutional amendments that were popularly adopted in some states and compelled by force of arms in
others, Reconstruction, Jim Crow, official segregation, and now a biracial President—any better just what Jefferson meant?
* See my previous books: Constitutional Chaos: What Happens When the Government Breaks Its Own Laws; The Constitution in Exile: How the Federal Government Has Seized Power
by Rewriting the Supreme Law of the Land; A Nation of Sheep; Dred Scott’s Revenge: A Legal History of Race and Freedom in America. Lie #2
“All Men . . . Are Endowed by
Their Creator with Certain
Inalienable Rights”
Wilhelmina Dery, an elderly woman who had lived in her house since her birth in 1918, was planning to stay there with her husband, Charles, until
she died.1 That was her plan, at least, until the City of New London decided it would take her house, and the entire neighborhood, away from the
homeowners so it could build a development on the land. By the time they lost the case, Kelo v. New London, in the Supreme Court, Wilhelmina
and her husband, at age eighty-seven and eighty-six years old respectively, were about to be kicked to the curb by the State of Connecticut.2 Yet,
after the Court’s unfavorable ruling, many of the plaintiffs, including the Derys’ son, were able to delay the government’s confiscation of their homes.
In the meantime, Wilhelmina got her wish and died in the house she had been born in eighty-eight years earlier.3
Susette Kelo, the named plaintiff in Kelo v. New London, stated, “There is no amount of money that could replace our homes and our memories.
This is where we chose to settle, and this is where we want to stay. This is America, the home of the free, isn’t it?”4 Kelo’s poignant words make a
very meaningful point: What ever did happen to the freedom to enjoy happiness on your own property?
That right to enjoy your own property derives from Natural Law, and Natural Law teaches that human freedom extends from human nature, which
originates with God. So under Natural Law, legislatures have unwritten limitations imposed on them because human gifts that come from God are
greater than government powers based on consensus, whim, fear, or force.
Under Natural Law, our fundamental rights—like freedom of speech, freedom to travel, freedom of religion, etc.—cannot be taken away by the
government, unless it follows procedural due process. Due process means that we knew before we violated the law that the government would
prosecute, that we were fully notified by the government of the charges against us, and that we had a fair trial with a lawyer before a neutral judge
and jury. It also means that we can challenge the government’s evidence against us by summoning persons and evidence that support our case,
that the government must prove its accusations against us beyond a reasonable doubt, and that we are given the right to appeal to another neutral
court. Under the Natural Law, only by following procedural due process can the government deprive us of our Natural Law rights.5
Numerous intellectuals throughout history have espoused the Natural Law. Sophocles, Aristotle, and Cicero; Augustine, Aquinas, and Locke;
Jefferson, Martin Luther King, Jr., Justice Clarence Thomas, and Pope John Paul II, all recognized the existence and immutability of Natural Law.
As Aristotle put it, “one part of what is politically just is natural, and the other part is legal.” If you fast forward a little bit, transcendental thinker Henry
David Thoreau argued in his famous essay, Civil Disobedience, that people should follow their own consciences over what the government
purports to be right. Civil Disobedience was published in the mid-1800s, a time when slavery was legal and America was in the midst of a war with
Mexico. Throughout the text Thoreau emphasized that through the refusal to accept passively what the government actively tells us, the individual
chooses to obey his own morality.6
The underlying message of these philosophers still holds true today within the context of Natural Law. Certain rights are inalienable and implicit
within our humanity, regardless of whether they are written down on paper. Among these natural rights are the right to life, to self-expression, to
worship, to the use and enjoyment of one’s own property, the ability to contract, and the right to reap the benefits of one’s own labor; and the right to
be left alone.
Not only is the right to your own property implicit through the doctrine of Natural Law, but it is also a concept closely tied to the achievement of the
American Dream. The familiar white picket fences, lawns, and cars in the garage are the material things and the consequent set of values that the
government threatens through infringing upon our natural rights. If I own the brain inside my head and the fingers on the ends of my hands, then I own
what they together have conceived, created, and built, be it a book or a house.
Despite Natural Law rights, the government skulks its way into our homes, businesses, kitchens, and even our backyards (literally). However,
courageous people have struggled to keep a grasp on their personal liberties in spite of the government’s powerful encroachment upon them.
Your Home Is Your Castle
You may think that once you pay for your house, it is actually yours, and no one can take it away from you. But, guess what? The Takings Clause of
the Fifth Amendment to the U.S. Constitution specifies that the government may take private property for “public use,” so long as the government
pays the private owner “just compensation” for it, otherwise known as using eminent domain. The Jeffersonians argued that any use of eminent
domain should not be permitted under any circumstance; namely, that only by mutual consent and a fair bargain, but never against your will, could
the government end up owning your property. Conversely, the Hamiltonians argued that the government could take any land it wants for free, just like
the British kings at one time could and did.
In one New Jersey Supreme Court decision, taking the Hamiltonian position to the extreme, Chief Justice Robert N. Wilentz stated, “The basis for
the constitutional obligation is simple: the State controls the use of land, all of the land”7 (emphasis in original). This alarming use of state power
discussed by the late Chief Justice is exactly the type of action the Constitution was expressly meant to limit. The New Jersey governor who
appointed Wilentz as Chief Justice (and who also appointed me to the Superior Court of New Jersey) called this opinion “socialist.”8
Traditionally, a government taking has meant that if someone’s house stood where the government planned a roadway or a post office or a
school, the person would be forced to move in order to accommodate the public project, and the government would pay the owner for the market
value of the vacated property. The only issues between the government that coveted the private property and the owner of the private property
traditionally have been “when” will the government get the property and “how much” will the government pay. Since Jefferson lost the argument in
which he asserted that a taking must be fully consensual, the “whether” the government can get the property has rarely been in dispute. Originally,
these “public use” and “just compensation” requirements were put in place by the drafters of the Constitution in order to limit governmental power
and protect personal property rights. The Fifth Amendment, which addresses government takings, was drafted with the lingering memory of British
soldiers taking the colonists’ property and was therefore put in place to ensure that these indiscriminate takings would not continue to occur.9 Let’s
take a look at the way the government has perverted this meaning.
Over time, courts have morphed the public use requirement into something much broader, called public benefit. In fact, the public use
requirement has all but been obliterated. While it had previously meant that the use was “in common and not for a particular individual,” cases
whittled the requirement down to basically whenever the court thought the public could benefit from the taking.
The drafters’ intention has been almost completely abandoned. As I wrote about in the beginning of this chapter, most recently, the Supreme
Court of the United States, in a 5 to 4 opinion in the case of Kelo v. New London (2005),10 took the limiting term “public use” and expanded it to
permit the City of New London, Connecticut, to take over a nine-acre residential neighborhood and give it to a private developer.11 The City
created the New London Development Corporation to buy the land and find a developer that would build an “urban village” to attract shoppers and
tourists to the City.12 The City used this proposed plan along with financial incentives to entice Pfizer, a giant pharmaceutical company, to build a
headquarters in New London.13
The idea that a city government, or any government for that matter, can justify a taking of one’s private property to give to another private entity for
the local government’s economic benefit is one that utterly obscures the distinction between takings for private and public use, and one that visits
instability on all property owners and omnipotence on any government that has jurisdiction over the real estate. It also suggests that the government
can take private property if it believes that the land can be put to better use. Justice O’Connor’s dissent in Kelo rightfully took a frightened tone
toward that possibility. She wrote, “. . . [The Public Use Clause] has no realistic import. For who among us can say she already makes the most
productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the state from
replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”14 If only the “highest and best use” of a
particular property is honored, the Kelo Court essentially fostered a type of slavery where a landowner is forced to labor over property against his
will.
Justice Thomas also dissented in Kelo, pointing to both the short and long-term consequences of the Court’s ruling. He discussed the immediate
loss that property owners feel when they are displaced from their homes and uprooted from their communities. Furthermore, he stated that this is
not something for which the government can realistically provide compensation because a “subjective value” is involved. Thomas then articulated
some of the daunting long-term consequences involved when the government allows takings for economic development. Harkening Jefferson, he
noted, “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to
encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities”15 (emphases added).
Justice Thomas’s dissent touches upon one of the most sorrowful themes underlying the Kelo case: by choosing to hand the land over to the
developer, the Court rejected the homeowners’ personal values in favor of the government’s economic value; the choice of personal values is
protected by the Natural Law.
The choice of personal values (a book or a TV, a car or a bicycle, early to bed or up all night) is absolutely immune from government interference
unless the exercise of that choice substantially and unfairly interferes with another’s natural rights. The use to which one puts one’s real estate
(cottage or mansion, grass or Astroturf, indoor or outdoor plumbing) is a personal value. Moreover, the traditional bundle of rights encompassing,
and even defining personal ownership of real estate are the right to use, the right to alienate, and the right to exclude; the last of these
encompassing even the right to exclude the government.
In Kelo, Uncle Sam is saying that the government can take away your land, simply because it doesn’t value the way you use it. Kelo also gives the
government an easy target, by allowing the government to infringe unduly upon the rights of poor people. Many of these people worked very hard to
buy these homes, to achieve their own version of the American Dream. Who is the government to take it away?
(We) Give, and (They) Take
Although the Kelo case signaled the most drastic expansion of government power under the Takings Clause, the government had been testing the
water for decades. In the 1954 U.S. Supreme Court case Berman v. Parker, the federal government razed a local store so that a private company
could build a redevelopment project. In that case, the Court paid little attention to the “public use” requirement, and instead decided that the
Washington, D.C., area where the store was located was blighted, even though the store itself was not blighted. Kelo took a further leap because
there was no accusation that the Connecticut neighborhood was blighted; the city merely felt that government-approved developers could improve
the area economically.
In Poletown Neighborhood Council v. City of Detroit (1981), the Supreme Court of Michigan permitted the government of the City of Detroit to
wipe out a community in order to let General Motors build an assembly plant. (Wow, the government helping out GM? Who would’ve thought!? But
more on this later . . . ) As a result of this massive taking, 3,468 people were ousted from their homes. In that case, the Court justified the taking
based on the number of jobs that would be created by the plant (6,000) and the assurances that it would be for “public use.”16 The City of New
London did not even bother to make this type of assurance. It just asked the Court to take its word for it, and five justices listened.
You Can’t Make This Stuff Up!
On November 9, 2009, to add insult to injury, Pfizer announced that it would leave New London in 2011, moving most of its New London employees
to nearby Groton, Connecticut.17 Pfizer’s exit proves that the New London City Council, shockingly, is not as intelligent as it originally thought. The
“urban village” was never built, and the land that the City took remains barren.18 According to Scott G. Bullock, senior attorney at the Institute for
Justice, the New London debacle “really shows the folly of these plans that use massive corporate welfare and abuse eminent domain for private
development. They oftentimes fail to live up to expectations.”19 Tell me about it.
Thankfully, the Kelo saga wasn’t a total loss. Legislators in forty-three states, in response to New London’s abuse of power, passed statutes
prohibiting similar exercises of the eminent domain power.20 Regardless, governments should not have to pass laws requiring themselves to
operate within the Fifth Amendment. Americans are under the impression that obeying the Constitution is part of the government’s job.
A Man’s Word Is His Bond
The freedom to contract is another right derived from Natural Law. One law review article noted:
Freedom of contract, together with the right to own property, were core elements in the American vision of personal liberty . . . The American constitutional scheme places
contract liberty well above common law status; it is a guaranteed personal right. Liberty of contract is recognized not as power delegated by the sovereign, but as power
originating in and guaranteed to the people.21
In other words, it is a natural right. You agree to pay me X dollars for this book, and I agree upon receipt of the X dollars to deliver you the book.
The right to enter into that agreement is a natural right; the right to have that agreement enforced is one of the aspects of human freedom that
governments exist in order to protect. At one time in our history, these rights—to enter into a binding contract and to use the government to enforce
the contract—were guaranteed. Sadly, now that is no longer the case.
In a way, people who enter into contracts with each other make law for themselves because the government is constitutionally restrained from
interfering unless there is a breach of the contract or the essence of the contract is unlawful. Yet, like our right to private property, our natural right to
contract, as well as the rights defined in the Contracts Clause of the Constitution (Article I, Section 10, Clause 1), have repeatedly been violated by
the government.
One of the greatest cases of government assaults on the right to contract was in Home Building & Loan Association v. Blaisdell (1934), where
the U.S. Supreme Court upheld as constitutional a Minnesota law prohibiting banks from foreclosing upon mortgages that were in default. John and
Rosella Blaisdell had borrowed money from Home Building & Loan to buy a house. The agreement, which was freely made between the Blaisdells
and the bank, specified that if the Blaisdells defaulted on the loan, the bank could foreclose on the house, sell it, pay itself back the unpaid loan, and
then turn over any remaining amount, what lawyers and economists call equity, to the Blaisdells. But the “government-knows-best” attitude in the
State of Minnesota would have none of this freedom. It chose the value of people living for free over the value of enforcing freely entered contracts. It
imposed a moratorium on home foreclosures, and the Blaisdells, preferring to live for free, took advantage of that.
Yet, the U.S. Supreme Court held that it was constitutional if Minnesota stopped the banks from foreclosing on mortgages when the borrower
defaulted. So, what was the Court’s justification for this blatant disregard of both our natural rights and the Contracts Clause? Was there a
justification? In Blaisdell, the Supreme Court tore the Constitution’s Contracts Clause to shreds by allowing state interference with private contracts
(those as to which the government is not a contracting party) whenever state legislatures found a “valid police purpose”22 that interfered with the
remedy (foreclosure), not the contract (the promise to repay a loan). So, in truth, the State can butt into our personal right to contract, whenever it
feels like it,23 so long as it doesn’t blatantly outlaw contracts, just their remedies. The Blaisdells still owed the bank the money they borrowed; the
bank just couldn’t get the money back until the State of Minnesota said it could.
Justice Sutherland wrote in his dissent:
[W]hether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely
irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it has any, cannot save it; if it is, its faults cannot be invoked
to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.24 (emphases
added)
Obviously Justice Sutherland understood not only the nature of the Contracts Clause, but the natural right to contract and the spirit of the entire
Constitution. The Constitution is the supreme law of the land. The oath to enforce and uphold it is taken by everyone in the government. They are
charged with enforcing its terms—upholding the liberty it guarantees—whether that liberty pinches or comforts. The Blaisdell result is not the way
the Framers intended the Constitution to be used.
The buck did not stop at Blaisdell. Today, in the wake of the Chrysler bailout, we see the current establishment’s utter carelessness when it
comes to the contract rights of Chrysler’s bondholders. The bondholders are secured creditors, which means by law they hold a higher ranking than
shareholders or unsecured creditors in a reorganization or bankruptcy. Outrageously, though, the government— which has inserted itself into this
private bankruptcy by virtue of its massive loans to Chrysler—is completely ignoring this rule and is instead awarding majority ownership to the
United Auto Workers, and only a small part of ownership to bondholders.
When the bondholders tried to get a larger stake in Chrysler, President Obama publicly referred to them as “vultures,” and they eventually backed
down.25 Since when are you a “vulture” just because you ask that the contract you agreed to be enforced? And since when does the President
interject himself into the fray when a lender wants a loan repaid? When contracts don’t mean what they say; that’s when.
While it may be reasonable for the court to step in when a person was deceived or actually forced into a contract, it is quite another circumstance
when the Court enters into a perfectly fair agreement between the parties. This often paternalistic nature of the Court does more than take away our
personal liberties; it also destroys the value of the contract itself. If the Court can actually dismiss the terms of a contract, allowing a party to breach,
what is the point of making an agreement in the first place? If the use of contracts is put into question, a cloak of doubt is cast on our whole way of
doing business in America.
Aren’t You Entitled to the Fruits of Your Labor?
You would think that if you grew something in your own backyard, for your own personal use, the government would not meddle. Guess again! In
1940, the federal government fined Roscoe Filburn, an Ohio farmer, for producing an excess amount of wheat on his farm. The government’s act of
limiting the amount of wheat Filburn grew and then actually punishing him for it, seems like a gross restriction on individual liberty in itself. But the
situation gets downright ridiculous when you consider that Filburn was not selling this wheat, not bartering with it, not leaving the State with it; poor
Filburn was just growing the wheat for himself and his family to use. Now imagine how outraged you would be if the government regulated the
parsley you grew in your backyard garden, or the summer tomatoes you planted. You get the picture. This ruling is simply a violation of the natural
right to the fruits of one’s lawful labors.
The Supreme Court used and abused the power of the Commerce Clause against Filburn in this case. The Commerce Clause gives the federal
government the right to regulate commerce with foreign nations, among the states, and with the Native American tribes. While the Court’s
interpretation of “among the states” has varied over the years, one of the main reasons for the clause was to prevent excessive competition
between the states. The original meaning of the word regulate was “to keep regular.” Its sole purpose was to prevent states from creating state
tariffs to be used to the detriment of other states.
So, basically, the Commerce Clause was intended to empower Congress to keep interstate commerce regular, that is, devoid of tariffs imposed
on the movement of goods over interstate borders by the states. Such tariffs had severely hampered commerce under the Articles of Confederation
and were a major impetus for drafting the U.S. Constitution. Some of the broader interpretations of the Clause have included intrastate commerce
that could have an effect on interstate commerce. Yet, who would have guessed that the government could regulate something that goes from your
backyard to your kitchen table and is never actually bought or sold or moved more than a few feet?
The government’s argument was that through the cumulative effect of Filburn’s use of his own wheat, and others’ potentially similar use of theirs,
there might or could be an effect on interstate commerce, and that these activities were therefore subject to federal regulation. This means that if
lots of people started to overproduce wheat in their backyards and consume it, it could affect the amount of bread or cereal that is being bought (or
not bought) in stores. But, that is a big if. Also, the act of growing crops to provide for your own family has been going on much longer than the
government itself. This harebrained reasoning employed by the government and accepted by the Supreme Court, paired with the destruction of the
personal property rights conferred through Natural Law, make Wickard v. Filburn one of the more truly absurd and highly dangerous federal power
trips.
Commerce Clause: No Rationality Required
Not only has the government regulated the remedies for defaulting on loans, not only has it regulated the amount of wheat grown in our backyards, it
has also regulated the number of hours per day bakers can spend turning that wheat into bread. An 1897 New York State law pertaining to this,
stated: “No employee shall be required or permitted to work in a biscuit, cake, or bread bakery or confectionary establishment” for more than ten
hours per day. New York tried to rationalize the law by stating that the measure was meant to protect the health, safety, welfare, or morality of
bakers in New York.26 Huh? Since when can the government tell people that they cannot voluntarily work more than ten hours per day? And why
would bakers need to be protected from these long hours; is it particularly dangerous work?
When the Supreme Court heard this case, it looked at whether there was a legitimate need for the State of New York to regulate workers’ hours
because of the nature of baking. The Court said that given the nature of certain types of work, like mining or working with coal, it may be
appropriate for the state to regulate, yet there was no genuine health issue present in baking. Consequently, the Supreme Court decided in
Lochner v. New York, that New York had no right to make such a law. The opinion states:
It is a question of which of two powers or rights shall prevail—the power of the State to legislate or the right of the individual to liberty of person and freedom to contract . . . The
act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with
the general right of an individual to be free in his person and in his power to contract in relation to his own labor.
This poorly reasoned opinion did the right thing (uphold freedom of contract) for the wrong reason (the state’s claim of right to interfere was not
strong enough). The state is without any right to interfere in freely negotiated for contracts. But sadly, Lochner is no longer the law. Since the days
of Lochner, the defense of natural rights has fallen into disrepute with courts. If individuals know that the government can step in and nullify the
contracts they enter into, what purpose do they serve? The post-Lochner era challenges both the sanctity and meaning of contracts themselves,
taking another one of our fundamental rights with it.
We Are Free to Work as Much
(or as Little) as We Want
Flash forward. What do cases like Wickard v. Filburn, Home Building & Loan Association v. Blaisdell , or Lochner v. New York mean today?
While there may not be too many cases involving backyard wheat production in recent memory, the right to keep the fruit of our own labor is still in
peril. Between the current economic downturn and the Big Government crowd still in power, it would not seem unlikely for the government to put
constraints on our freedom to work. A New York Times article suggests that the federal government should force workers to take extended
vacations, days off, or restrict their weekly hours, in order to reduce the number of layoffs.27 The suggestion is to adopt a policy similar to European
countries like France, where the law dictates the number of hours workers are allowed to clock in per week, thereby reducing the amount of
overtime individuals are able to receive and, essentially, the amount of money they are able to make. In Blaisdell, the Supreme Court opened the
door to exactly this type of government assault on our right to enter into and enforce binding private contracts.
While longer vacations never fail to sound appealing, mandates like this from the government are patently un-American. We have always been a
self-made, individualistic people who pick ourselves up by the bootstraps and work as hard, and for as many hours as needed to reach our
intended goals. And the bottom line is, this is a democracy whose government is by law restrained by a Constitution that guarantees enforcement
of the Natural Law, and it should be our choice to work as much or as little as we please.
One of the reasons why people come to America is that there are fewer speed bumps to the top of the ladder in comparison with other countries.
People from a variety of backgrounds can toil and sweat their way up the ladder here. If sanctions were put on the number of hours we were allowed
to work, there would be fewer avenues open to reach the top, and only certain people would be able to make it (likely those with the best
educations, most social and family connections, the most money, and in favor with the government). This is not what America is about, and this is
certainly not freedom in a broad sense.
All of the natural rights discussed in this chapter deal with subject matter that is exceedingly personal. The private decisions we make about
where we want to raise our families, the agreements we make with other parties, and the amount of work we decide to do, are all choices that have
an effect on our personal health, wealth, and happiness. As individuals, we make decisions that are varied. What is good for one may simply not be
good for another. It is time for the government finally to recognize the American people as individuals and hand us back our natural rights.
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NEWS | Supreme Court
Alito ’72 joined conservative alumni group
Concerned Alumni of Princeton known to be anti-coeducation
By Chanakya Sethi
Senior Writer
Senior Writer
Published: Friday, November 18th, 2005
Clarification appended
Earlier this week, recently released documents drew attention for showing that, in a 1985 job application, Supreme Court nominee Samuel Alito ’72 wrote that he is “particularly proud” of his work on cases arguing that “racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
Now, opponents to his nomination are using another piece of information from those documents to suggest he is far outside the mainstream in his political and social views: Near the end of his “Personal Qualifications Statement” for a high-level job in Ronald Reagan’s Justice Department, Alito wrote that he was “a member of the Concerned Alumni of Princeton University, a conservative alumni group.”
Interviews with several alumni who were students in the 1970s paint a picture of Concerned Alumni of Princeton (CAP) as a far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.
The group, which published a magazine in which students wrote nostalgically about the days before coeducation, was frowned upon by Nassau Hall. Some alumni expressed surprise at Alito’s association with CAP, but at least two suggested he might have put it on the 1985 job application to appeal to a personal connection in the Reagan administration.
The only CAP member who could be reached by The Daily Princetonian, Alito supporter and former New Jersey Superior Court judge Andrew Napolitano ’72, defended the group, saying that there is “absolutely no way” it sought to protest coeducation.
The organization, Napolitano said, was committed instead to increasing alumni involvement in Princeton and tempering “the University’s anti-traditionalist leftist urges” at a sensitive time in history when the majority of students and faculty were opposed to the Nixon administration’s policies, particularly the Vietnam War.
Napolitano said he never associated himself with any individual’s anti-coeducation stance, adding that “Sam Alito would never associate himself with that” either.
Also, Napolitano, who served on CAP’s board from its founding in 1972 until it shut down in the early 1980s, said that he has “zero recollection of Sam Alito being involved directly or indirectly” with the group.
But Marsha Levy-Warren ’73, who was a member of the University’s first coeducational class and student government vice president, remembers things differently. In an interview Thursday evening, she recalled Alito, Napolitano and T. Harding Jones ’72, another CAP member, as “part of a group of extremely conservative undergraduates.”
Though Levy-Warren did not recall Alito being involved with CAP as an undergraduate, she said the group “stated explicitly that they were not in favor of coeducation and that they weren’t in favor of affirmative action. Implicitly, they were opposed to any form of diversity on campus.”
The group’s magazine, “Prospect,” seems to support this assessment. Writing in the February 1973 issue of the magazine about the increasing number of women on campus, Jones, who served as editor of the publication, wrote: “The makeup of the Princeton student body has changed drastically for the worse.”
He could not be reached for comment.
“Prospect” was founded in October 1972 by the then-newly-formed CAP, which was co-chaired by Asa Bushnell ’21 and Shelby Cullom Davis ’30. The latter, who was the University’s largest donor at the time, was a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation.
He wrote in “Prospect”: “May I recall, and with some nostalgia, my father’s 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton,” according to an account in “The Chosen,” a book by Jerome Karabel on the history of admissions at Harvard, Yale and Princeton.
“I cannot envisage a similar happening in the future,” Davis added, “with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed.”
The first issues of “Prospect” ostensibly did not receive a warm reception, particularly from Nassau Hall, which viewed the magazine and its group sponsor as a barrier to the progressive agenda of President William Bowen GS ’58 and the University trustees. Princeton officials were quoted criticizing the publication in the ‘Prince,’ Princeton Alumni Weekly and The New York Times.
Former U.S. Senator Bill Bradley ’65, who served on the alumni advisory board of “Prospect,” also created a stir when he quit the publication abruptly after its second issue, saying in the ‘Prince’ that the magazine was “filled with innuendo and unsupported allegations” about the University.
“We all thought of [CAP] as the crinkly old alums,” said Mark Dwyer ’72, a friend of Alito’s and his roommate when both of them were studying at Yale Law. “But they seemed a little far enough from the mainstream that I didn’t know anybody who had much to do with them.”
Diane Weeks ’75, a vocal critic of CAP financier Davis and a colleague of Alito’s when he was U.S. Attorney for New Jersey, did not expect Alito to publicly associate himself with the group. “I’m very surprised that he would support such an organization,” Weeks said, but added, “I once joked to him that he must be very disappointed that women were admitted to Princeton and he just didn’t have a response.”
Some alumni have suggested, however, that Alito’s association with CAP may not be exclusively about politics, but also about networking for the job market.
“Probably the most cynical view was that undergraduates [who were members of CAP] wanted to ingratiate themselves so that they had good summer jobs,” Lee Kaplan ’73 said. “Other people thought that they were truly committed individuals who were swimming against the prevailing political tide.”
A possible networking connection involves Terry Eastland, who served in the Justice Department during the Reagan administration and was involved with CAP, according to two people familiar with the group who asked not to be named because of the sensitivity of the issue.
“That would have been a good connection for Sam,” one of the individuals said.
Indeed, the mention of CAP seems out of place on a resume that discussed Alito’s involvement with more prominent organizations such as the Federalist Society, a group of conservative lawyers, and the National Review and American Spectator, two national conservative publications.
Asked about his former roommate’s possible intentions, Dwyer said, “I’m sure Sam had something in mind. He wouldn’t have put that in his job application if he didn’t have a connection.”
Regardless, some alumni say Alito’s association with CAP should factor into the nominee’s pending hearings before the Senate.
“I don’t know about his involvement in CAP,” said Sally Franks ’80, who sued several Prospect Avenue eating clubs for denying women membership. “But I know about CAP and what kind of an organization CAP was in the late 70s and the early 80s and how reprehensible and scary it is that someone trying to be on the Supreme Court would have touted his membership in a job application.”
Weeks, Alito’s former colleague said: “I think now he has completely opened up the issue about what is your current opinion about abortion, about the rights of women and minorities … as opposed to [recent nominee and Supreme Court Chief Justice John] Roberts, Sam’s going to have to answer those questions.”
Indeed for some interviewed, the revelation about Alito’s association with CAP has already negatively affected their perceptions of him.
“It did rearrange my view of him a little bit because these people seemed so rabid and out of control,” Abigail Bok ’76 said. “This wasn’t a serious debate about what Princeton should be like, as far as we could tell. It was just people snarling extremist views and yapping around the edges.”
— Includes reporting by Princetonian Staff Writer Aditi Eleswarapu.
Earlier this week, recently released documents drew attention for showing that, in a 1985 job application, Supreme Court nominee Samuel Alito ’72 wrote that he is “particularly proud” of his work on cases arguing that “racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
Now, opponents to his nomination are using another piece of information from those documents to suggest he is far outside the mainstream in his political and social views: Near the end of his “Personal Qualifications Statement” for a high-level job in Ronald Reagan’s Justice Department, Alito wrote that he was “a member of the Concerned Alumni of Princeton University, a conservative alumni group.”
Interviews with several alumni who were students in the 1970s paint a picture of Concerned Alumni of Princeton (CAP) as a far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.
The group, which published a magazine in which students wrote nostalgically about the days before coeducation, was frowned upon by Nassau Hall. Some alumni expressed surprise at Alito’s association with CAP, but at least two suggested he might have put it on the 1985 job application to appeal to a personal connection in the Reagan administration.
See all of the ‘Prince’ coverage of the Alito nomination here.
The only CAP member who could be reached by The Daily Princetonian, Alito supporter and former New Jersey Superior Court judge Andrew Napolitano ’72, defended the group, saying that there is “absolutely no way” it sought to protest coeducation.
The organization, Napolitano said, was committed instead to increasing alumni involvement in Princeton and tempering “the University’s anti-traditionalist leftist urges” at a sensitive time in history when the majority of students and faculty were opposed to the Nixon administration’s policies, particularly the Vietnam War.
Napolitano said he never associated himself with any individual’s anti-coeducation stance, adding that “Sam Alito would never associate himself with that” either.
Also, Napolitano, who served on CAP’s board from its founding in 1972 until it shut down in the early 1980s, said that he has “zero recollection of Sam Alito being involved directly or indirectly” with the group.
But Marsha Levy-Warren ’73, who was a member of the University’s first coeducational class and student government vice president, remembers things differently. In an interview Thursday evening, she recalled Alito, Napolitano and T. Harding Jones ’72, another CAP member, as “part of a group of extremely conservative undergraduates.”
Though Levy-Warren did not recall Alito being involved with CAP as an undergraduate, she said the group “stated explicitly that they were not in favor of coeducation and that they weren’t in favor of affirmative action. Implicitly, they were opposed to any form of diversity on campus.”
The group’s magazine, “Prospect,” seems to support this assessment. Writing in the February 1973 issue of the magazine about the increasing number of women on campus, Jones, who served as editor of the publication, wrote: “The makeup of the Princeton student body has changed drastically for the worse.”
He could not be reached for comment.
“Prospect” was founded in October 1972 by the then-newly-formed CAP, which was co-chaired by Asa Bushnell ’21 and Shelby Cullom Davis ’30. The latter, who was the University’s largest donor at the time, was a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation.
He wrote in “Prospect”: “May I recall, and with some nostalgia, my father’s 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton,” according to an account in “The Chosen,” a book by Jerome Karabel on the history of admissions at Harvard, Yale and Princeton.
“I cannot envisage a similar happening in the future,” Davis added, “with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed.”
The first issues of “Prospect” ostensibly did not receive a warm reception, particularly from Nassau Hall, which viewed the magazine and its group sponsor as a barrier to the progressive agenda of President William Bowen GS ’58 and the University trustees. Princeton officials were quoted criticizing the publication in the ‘Prince,’ Princeton Alumni Weekly and The New York Times.
Former U.S. Senator Bill Bradley ’65, who served on the alumni advisory board of “Prospect,” also created a stir when he quit the publication abruptly after its second issue, saying in the ‘Prince’ that the magazine was “filled with innuendo and unsupported allegations” about the University.
Surprise association for some
Several alumni expressed surprise when they learned that Alito associated with Davis and CAP.“We all thought of [CAP] as the crinkly old alums,” said Mark Dwyer ’72, a friend of Alito’s and his roommate when both of them were studying at Yale Law. “But they seemed a little far enough from the mainstream that I didn’t know anybody who had much to do with them.”
Diane Weeks ’75, a vocal critic of CAP financier Davis and a colleague of Alito’s when he was U.S. Attorney for New Jersey, did not expect Alito to publicly associate himself with the group. “I’m very surprised that he would support such an organization,” Weeks said, but added, “I once joked to him that he must be very disappointed that women were admitted to Princeton and he just didn’t have a response.”
Some alumni have suggested, however, that Alito’s association with CAP may not be exclusively about politics, but also about networking for the job market.
“Probably the most cynical view was that undergraduates [who were members of CAP] wanted to ingratiate themselves so that they had good summer jobs,” Lee Kaplan ’73 said. “Other people thought that they were truly committed individuals who were swimming against the prevailing political tide.”
A possible networking connection involves Terry Eastland, who served in the Justice Department during the Reagan administration and was involved with CAP, according to two people familiar with the group who asked not to be named because of the sensitivity of the issue.
“That would have been a good connection for Sam,” one of the individuals said.
Indeed, the mention of CAP seems out of place on a resume that discussed Alito’s involvement with more prominent organizations such as the Federalist Society, a group of conservative lawyers, and the National Review and American Spectator, two national conservative publications.
Asked about his former roommate’s possible intentions, Dwyer said, “I’m sure Sam had something in mind. He wouldn’t have put that in his job application if he didn’t have a connection.”
Regardless, some alumni say Alito’s association with CAP should factor into the nominee’s pending hearings before the Senate.
“I don’t know about his involvement in CAP,” said Sally Franks ’80, who sued several Prospect Avenue eating clubs for denying women membership. “But I know about CAP and what kind of an organization CAP was in the late 70s and the early 80s and how reprehensible and scary it is that someone trying to be on the Supreme Court would have touted his membership in a job application.”
Weeks, Alito’s former colleague said: “I think now he has completely opened up the issue about what is your current opinion about abortion, about the rights of women and minorities … as opposed to [recent nominee and Supreme Court Chief Justice John] Roberts, Sam’s going to have to answer those questions.”
Indeed for some interviewed, the revelation about Alito’s association with CAP has already negatively affected their perceptions of him.
“It did rearrange my view of him a little bit because these people seemed so rabid and out of control,” Abigail Bok ’76 said. “This wasn’t a serious debate about what Princeton should be like, as far as we could tell. It was just people snarling extremist views and yapping around the edges.”
— Includes reporting by Princetonian Staff Writer Aditi Eleswarapu.
Clarification and editor’s note
The original version of this article did not clearly identify Marsha Levy-Warren’s quote regarding Concerned Alumni of Princeton’s stance on coeducation and affirmative action as relating to the organization specifically. Also, this article reflects updates not in the paper’s print edition.© 2011 Daily Princetonian Publishing Company, Inc. All Rights Reserved.
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Fox Business Network Cancels Entire Primetime Lineup
First Posted: 02/ 9/2012 4:30 pm Updated: 02/10/2012 10:00 am
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Fox Business Network announced a drastic shakeup of its programming on Thursday, cancelling all of its primetime shows and replacing them with reruns.
The network has long trailed its major business news rival, CNBC, in the ratings. On Wednesday, for instance, FBN drew just 64,000 total viewers. CNBC drew 187,000. For all of 2011, the gap was even wider: 54,000 versus 228,000.
However, the suddenness of the moves was still surprising. “FreedomWatch with Judge Andrew Napolitano,” “Power & Money with David Asman” and “Follow the Money with Eric Bolling” were all canceled. Napolitano and Bolling have become well-known faces outside of FBN, and Bolling is a co-host of “The Five” on Fox News. All three hosts will continue as contributors to both Fox News and FBN.
Replacing the shows are repeats of “The Willis Report,” “Cavuto” and “Lou Dobbs Tonight.” Gerri Willis, who currently hosts her self-titled show at 5 PM, will eventually have her program moved to 8 PM. A new show starring Melissa Francis will take the 5 PM slot.
In an interview with Adweek on Tuesday, Neil Cavuto, who is a senior vice president as well as an anchor at FBN, addressed the network’s low ratings.
“We’re barely four years into this,” he said. “You gotta keep in mind that [our] competitors have been doing this close to a quarter of a century. I remember Fox News starting out with the same feeling. I don’t know what the magic moment will be, but I do know that when people have been exposed to Fox Business, invariably, they’re drawn to us.”
Napolitano responded to the news on Twitter:
@Judgenap
Judge Napolitano(h/t Johnny Dollar)
Also on HuffPost:
Fox News’ lineup.
The network has long trailed its major business news rival, CNBC, in the ratings. On Wednesday, for instance, FBN drew just 64,000 total viewers. CNBC drew 187,000. For all of 2011, the gap was even wider: 54,000 versus 228,000.
However, the suddenness of the moves was still surprising. “FreedomWatch with Judge Andrew Napolitano,” “Power & Money with David Asman” and “Follow the Money with Eric Bolling” were all canceled. Napolitano and Bolling have become well-known faces outside of FBN, and Bolling is a co-host of “The Five” on Fox News. All three hosts will continue as contributors to both Fox News and FBN.
Replacing the shows are repeats of “The Willis Report,” “Cavuto” and “Lou Dobbs Tonight.” Gerri Willis, who currently hosts her self-titled show at 5 PM, will eventually have her program moved to 8 PM. A new show starring Melissa Francis will take the 5 PM slot.
In an interview with Adweek on Tuesday, Neil Cavuto, who is a senior vice president as well as an anchor at FBN, addressed the network’s low ratings.
“We’re barely four years into this,” he said. “You gotta keep in mind that [our] competitors have been doing this close to a quarter of a century. I remember Fox News starting out with the same feeling. I don’t know what the magic moment will be, but I do know that when people have been exposed to Fox Business, invariably, they’re drawn to us.”
Napolitano responded to the news on Twitter:
Judge Napolitano
sad news friends, but don’t worry I’ll still be here defending liberty. http://t.co/z33jpcbv
Also on HuffPost:
Fox News’ lineup.
Fox and Friends, 6am
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Fox Business Network Cancels Judge Andrew Napolitano’s Freedom Watch – Hit & Run : Reason Magazine
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11:40 AM on 02/14/2012
The new Fox Business lineup:Rick Santorum hosts “How to Insure Your Religious Institutio
Mitt Romney hosts “Shock and Awe – How to Plunder Overvalued Companies”
and the anchor show,
Newt Gingrich hosts “How to Get Enormous Lines of Credit When Shopping for your Mistresses
11:38 AM on 02/14/2012
People have to understand that other Business sites have been giving very good news and analysis of business for years. People aren’t that much in to Fox. Real listeners know how Fox manipulate11:02 AM on 02/14/2012
If anyone got a chance to watch the series “Boss” starring Kelsey Grammar the you might have noticed that his assistant ‘Kitty Doyle ‘ is based on Megyn Kelly from Fox News.They even look alike,and for those who watched,we all know how Kitty made her way to the top.Maybe Fox has a whole house full of Kitty Doyles’…This user has chosen to opt out of the Badges program
09:20 AM on 02/14/2012
What Ailes you, Roger? Don’t want anyone discussing that growing Murdoch Discount? Don’t diss FOX share holders. When Rupert “retires,” that stock is going to fly high.This user has chosen to opt out of the Badges program
09:14 AM on 02/14/2012
Reruns of business shows? Isn’t that like reruns of the farm report? Seriously? Might as well show cartoons. Unless they have a catalogue of particular07:55 AM on 02/14/2012
Napolitano was nothing like other Fox hosts. He championed freedom, an end to the patriot act and the drug war and went wherever the truth took him….hen01:54 AM on 02/14/2012
Woohoo!01:34 AM on 02/14/2012
If only they would do this for the vast majority of their programmin11:33 PM on 02/13/2012
Eric Bolling, the unborn son of Moe Howard.08:32 PM on 02/13/2012
Murdoch likes Cavuto and Ailes they make him look energetic and thin too…07:52 PM on 02/13/2012
Fox News is always bragging about ratings and bashing CNN and MSNBC for their lower ratings but I doubt they will even mention this change at their business channel.07:05 PM on 02/13/2012
Media consolidatWith the help of Clinton’s 96 Telecommun
People want news, if they don’t have cable, they will be watching Fox news.
05:23 PM on 02/13/2012
the judge lost his show! i am giddy with glee.04:40 PM on 02/13/2012
The main problem is when you start investing your own cash, semantics take a back seat to quality informatio12:53 PM on 02/13/2012
JUnk mail!!..previous link
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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.
Nick Gillespie from the March 2005 issue(Page 4 of 6)
[The FDR era] began, in my view, the dark part of American history where the federal government believed that it could solve any problem that was national in scope, irrespective of whether it was a federal problem. A federal problem is one arising under the 18 specific enumerated powers given to the federal government under the Constitution. A national problem is something that exists in New Jersey and California and Texas and Illinois. But just because it’s national doesn’t mean it’s federal and therefore can be addressed by the federal government.
Reason: You contrast natural law with positivism, which you defined as pure democracy, and you said the Constitution reflects a natural law mind-set. Yet under the Constitution, we can repeal the First Amendment. As a natural law advocate, you would not feel compelled to follow that law, would you?
Napolitano: Correct.
Reason: So this helps to explain why you dedicate your book to Thomas More.
Napolitano: I dedicate the book to St. Thomas More and cite the most frequently quoted passage from A Man for All Seasons. More is basically saying everyone is entitled to due process, rights are not discretionary; and his son-in-law challenges him, saying, what about the rights of the devil? And More says, I would give the devil his due because when they come after me, I want them to give me my due. Every human is entitled to the protection of the law.
Reason: You said we entered a dark period in American history.
Napolitano: We did in 1932.
Reason: But wouldn’t you agree that if we’re talking about freedom of expression, people are much freer to express themselves now than they were in 1932? With or without the PATRIOT Act. For cultural and technological reasons, you can say whatever you want in a wider variety of contexts. You can disseminate information and points of view today that were unimaginable in 1932, a year in which you couldn’t even legally publish Ulysses or Lady Chatterley’s Lover. Something similar goes for lifestyle, too, and other parts of society.
Napolitano: In terms of the government control of our lives, in terms of the percentage of our income that the government takes from us, in terms of the types and the areas of human behavior we let the government regulate, we are infinitely less free. And as Jefferson once said, it is in the natural order of things that the government should be greater and human
liberty lesser.
Women have much more freedom. African Americans have much more freedom. Gays have much more freedom. The discrimination that was rampant, and often caused by the government, 40 or 50 or 60 years ago–there’s been progress in those areas. But the destruction of federalism, the centralization of power in Washington, the belief that Washington can regulate all aspects of our lives will, if not checked, lead us to a totalitarian form of government. Freedom is the power and ability to obey your own free will and conscience rather than the free wills and consciences of others.
Reason: You said abortion is murder. Should it be regulated by the state or should it be prohibited by the state?
Napolitano: Absolutely it should be prohibited, just the way all unjust killings are prohibited.
Reason: Should doctors go to prison as murderers?
Napolitano: Yes.
Reason: First-degree murder?
Reason: You contrast natural law with positivism, which you defined as pure democracy, and you said the Constitution reflects a natural law mind-set. Yet under the Constitution, we can repeal the First Amendment. As a natural law advocate, you would not feel compelled to follow that law, would you?
Napolitano: Correct.
Reason: So this helps to explain why you dedicate your book to Thomas More.
Napolitano: I dedicate the book to St. Thomas More and cite the most frequently quoted passage from A Man for All Seasons. More is basically saying everyone is entitled to due process, rights are not discretionary; and his son-in-law challenges him, saying, what about the rights of the devil? And More says, I would give the devil his due because when they come after me, I want them to give me my due. Every human is entitled to the protection of the law.
Reason: You said we entered a dark period in American history.
Napolitano: We did in 1932.
Reason: But wouldn’t you agree that if we’re talking about freedom of expression, people are much freer to express themselves now than they were in 1932? With or without the PATRIOT Act. For cultural and technological reasons, you can say whatever you want in a wider variety of contexts. You can disseminate information and points of view today that were unimaginable in 1932, a year in which you couldn’t even legally publish Ulysses or Lady Chatterley’s Lover. Something similar goes for lifestyle, too, and other parts of society.
Napolitano: In terms of the government control of our lives, in terms of the percentage of our income that the government takes from us, in terms of the types and the areas of human behavior we let the government regulate, we are infinitely less free. And as Jefferson once said, it is in the natural order of things that the government should be greater and human
liberty lesser.
Women have much more freedom. African Americans have much more freedom. Gays have much more freedom. The discrimination that was rampant, and often caused by the government, 40 or 50 or 60 years ago–there’s been progress in those areas. But the destruction of federalism, the centralization of power in Washington, the belief that Washington can regulate all aspects of our lives will, if not checked, lead us to a totalitarian form of government. Freedom is the power and ability to obey your own free will and conscience rather than the free wills and consciences of others.
Reason: You said abortion is murder. Should it be regulated by the state or should it be prohibited by the state?
Napolitano: Absolutely it should be prohibited, just the way all unjust killings are prohibited.
Reason: Should doctors go to prison as murderers?
Napolitano: Yes.
Reason: First-degree murder?
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