Comments on Judge Andrew P. Napolitano's Book "Constitutional Chaos", by David G. McDivitt

I found the book so intellectually stimulating I almost read it the entire way through in one sitting. It has an easy to read style. Just enough education in law is given, without being overdone, for Judge Napolitano to make his point. It is a good read because of the educational value, as well as the point made, which is hypocrisy in the application of law. As a constitutionalist, one at first thinks Judge Napolitano is conservative, but as he expresses many liberal views he is not aligned with any political camp, expressly. His views are his own, derived from his own experience. Because Judge Napolitano speaks of individualism so much, and because his views are personal to him and his experience, I characterize him as an existentialist. My comments challenge some premises stated or inferred by Judge Napolitano in "Constitutional Chaos". Nevertheless, I greatly appreciate Judge Napolitano for writing the book, airing his views, and precipitating discourse.

Topics are Natural Law versus Positivism, Human Rights, Not Constitutional?, Victims of Inconsistent Application of Law Were Bad People Anyway, and Conclusion.

Natural Law versus Positivism

Judge Napolitano begins the book defining "Natural Law" and "Positivism", then sets these against each other as theories with regard to law. The conflict is mentioned a few times later in the book. It would seem Judge Napolitano sought to define terms on the outset, as if establishing a foundation upon which to build a case, but there are some problems with his definitions.

Except with a religious view, there is no clear line between natural law and positivism as Judge Napolitano suggests. Contemporary religionists as Judge Napolitano try to own the idea of natural law, saying natural law is what God ordained. However, classical humanists such as Rousseau expressed the idea of natural law, and that same premise forms the moral platform for contemporary humanism. Judge Napolitano is therefore wrong to place natural law on the side of Christianity. He mentions a Roman Catholic upbringing. Since it is now in vogue for religionists to speak in terms of natural law, and because Judge Napolitano says the same thing as a religionist, without a doubt he is a religionist to some extent. Judge Napolitano failed to properly describe the origin of law as we know it.

Judge Napolitano says the "Natural Law Theory" is to believe God gave us whatever liberties, and the "Positivism Theory" is to believe our liberties are given by the government. An invalid definition of positivism is given. Positivism is not a synonym for humanism as Judge Napolitano infers. Representing positivism this way is a straw man argument against humanism, fallaciously propping up spiritualism and authority of the church.

From Merriam Webster, positivism is: a theory that theology and metaphysics are earlier imperfect modes of knowledge and that positive knowledge is based on natural phenomena and their properties and relations as verified by the empirical sciences b : LOGICAL POSITIVISM. Also from Merriam Webster, logical positivism is: a 20th century philosophical movement that holds characteristically that all meaningful statements are either analytic or conclusively verifiable or at least confirmable by observation and experiment and that metaphysical theories are therefore strictly meaningless -- called also logical empiricism.

To say we have liberties because such were ordained by God does nothing but express religious fundamentalism, and represents no functionality at all with regard to law, except bring to our remembrance, horribly, how church, state, and law often times were one in the same.

The system of law we have today came from King Henry II of England, who established judges to make judgments in his name. When King John later confiscated the property of nobles, they rebelled, and settlement came through signing the Magna Charta. The Magna Charta was enforceable because of dependence which had arisen on the judiciary. This "rule of law" happened totally by accident, on the one hand by Henry II, then because of greed by John. What we have today evolved from this beginning and has nothing to do with any moral focus derived from humanistic natural law. Neither is what we have ordained by God, for if so, one must wonder why other civilizations and cultures have not had our exact same laws. Our laws are good because we like them. Our laws match the society we have grown to be.

Human Rights

Rights are not God-given as suggested by Judge Napolitano. Rights are earned. Every right we have stems from conflict and use of force, with the "right" representing whatever negotiated settlement between opposing parties. Rights are tested and must be reestablished on occasion. To suggest we are living some dispensation of God ordained human rights and liberty is a simple minded view, to say the least. Such a view discounts all the work we have done as a people to secure our rights, it discounts all the blood we have shed in conflict, and it discounts misgivings by many people today striving for new rights, though they may not succeed, and though everyone does not agree with them. Andrew Napolitano is an excellent judge, which is very much to his credit, but he obviously is not a historian.

Not Constitutional?

For Judge Napolitano to say some things done by the Supreme Court of the United States, and some decisions by the Supreme Court, are not constitutional, has no standing with regard to the Constitution itself. This is because the Supreme Court is the interpreter of the Constitution, and unless the Supreme Court says a thing is unconstitutional, including its own actions, that thing remains constitutional. Nothing is higher than the Supreme Court. Even the Constitution is not higher than the Supreme Court because the Supreme Court interprets the Constitution. In technical terms, the ideas of God and religion are not higher than the Supreme Court, else we would have no rule of law in this country. Instead we would have a religious theocracy. Not everyone agrees with the Supreme Court. However, there is no statement of constitutionality except by the Supreme Court, and by proxy, other federal courts. Even after the Constitution came to be, the Supreme Court made decisions regarding itself and the role played by itself with regard to the Constitution. Judge Napolitano cites such an example in his own book: Marbury v. Madison.

The most we have are precedent and process. The Constitution does not stand alone, but is realized through precedent and process. There were initial interpretations of the Constitution. Those initial interpretations established whatever initial precedents, and we come forward from there. If a person must have a static document to live by, the Christian Bible, the Qur'an, or some other holy book should be used for that purpose.

Within the Constitution is contained how to amend or change the Constitution, which has been done many times. It is an ongoing exercise in civics. Is local city government, protocol for which often being Roberts Rules of Order, also set in stone as if a static document? Certainly not. The Constitution is similar. However, change to the Constitution is much more severe and significant. It is much more difficult to change the Constitution, involving extraordinary protocol.

The focus of this challenge to Judge Napolitano is in regard to statements made by him that the Supreme Court does unconstitutional things. Judge Napolitano is wrong because it is not possible for the Supreme Court to be unconstitutional. Shall Jesus Christ descend from heaven and say so? Shall aliens from another planet? On what basis? If we get the United Nations going well enough to establish enforceable international law, or the World Court has more prominence, maybe then it can be said the Supreme Court is behaving unconstitutionally. Let's hope this doesn't happen anytime soon, and reading Judge Napolitano indicates he doesn't want this either. It's alright to issue idealistic statements saying something is wrong. We all have opinions. When we state our opinions we certainly attempt to justify those opinions. However, to say the Supreme Court does unconstitutional things has no technical merit. Judge Napolitano should instead say the Supreme Court is not conforming to Biblical principles. Extending bibliocity to include the Constitution, inferring that God ordained the Constitution, and finally inferring that the Supreme Court does not obey the will of God, is a gross and egregious error. Logical induction is appropriate for this assertion criticizing Judge Napolitano, as if his opinion, though that opinion was not forthrightly stated by him.

In our idealisms we often grasp at straws. Discipline and continued debate should teach us not to do that. We are always playing moral one-upmanship, trying to take the higher ground, trying to encompass and discount arguments made by the opposing party. We live in an adversarial society. We do not have what we have because it descended from God, but because we struggle, contend, and mitigate our issues. The right thing to do is continue participating in society, which means continue contending with other people who have different opinions. The wrong thing to do is sit back, believe God ordained everything already, and limit debate to semantics and manifestation of what some people think God gave them.

What we have by luck is incredible foresight and wisdom by our founding fathers who wrote the Constitution. Many issues contributed to this, such as oppression by the King of England. If a religious person wants to credit God, fine, but upon entering the constitutional realm itself, that person must leave religious and divinity arguments outside. Why? There is no standard regarding religion or divinity. With great diversity regarding faith and supernaturalism, there exists nothing whatsoever causing all to be equal in this regard, except that all voluntarily agree to leave it outside the door. If a person wants to credit God, that person must accept it is the will of God for him or her to enter government in this manner, for such is how it began by our founding fathers, and such is how it continues to this day. Why? Because that's how we do things, and if there does exist a fulfilled will of God, then what we see must necessarily be that will. The author of these comments is an admitted atheist. The author was at one time a religious fundamentalist. The author is fully aware of theological logic. The author has expressed theologically sound logic.

Victims of Inconsistent Application of Law Were Bad People Anyway

When building his case, Judge Napolitano gives as evidence many times where government broke the law to enforce the law. Unfortunately, victims cited by him are bad or seemingly immoral people, and examples given serve only to justify what the government did. Judge Napolitano is correct to criticize the government. However, no argument is made against people who favor strong law enforcement, or those glad to see law enforcement sidestep legal encumbrances. "After all", they say, "we should trust them. They serve the public good. If they need to do something it must be necessary else they would not do it (my words)." To people of this mindset, Judge Napolitano does not show why government is wrong. Judge Napolitano should be applauded for bringing this issue to light, but better examples should be used.


Judge Napolitano expresses a strange mix of conservatism and liberalism. His view of the Constitution is conservative. His view against law enforcement is liberal. His religiosity is neither conservative or liberal; just unfortunate. It is unfortunate he bases law on religious premises. There is certainly nothing wrong with Judge Napolitano being religious, but it is wrong for him to mingle religion with law, in his opinion of law, as a judge. The book "Constitutional Chaos" exemplifies a man in transition. In the book Judge Napolitano states how conservative he was upon first becoming a judge, to become liberal viewing travesties by law enforcement and government. It is good he saw and recognized these things. Judge Napolitano needs to finish that transition. He does not need to become an atheist as the author of these comments, but he would be well served to differentiate religion from law, and gain the ability to express the history of law in a free-standing manner. The book is good because through it, government abuse and hypocrisy are mentioned in a public forum by a reputable source, and Judge Napolitano should be applauded for writing the book.

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