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

Reason, March, 2005 by Nick Gillespie

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?

Napolitano: Yes.

reason: Should they get the death penalty--

Napolitano: I don't believe that the state has the moral authority to execute, so I don't believe in the death penalty.

reason: But you do think that doctors who perform abortions should be put in jail as murderers? Every bit as much as Scott Peterson?

Napolitano: Yes. By a state government, not by the federal government, because the Constitution doesn't authorize the federal government to prosecute murderers. Roe v. Wade is wrong because there's isn't a scintilla in the Constitution or its history to justify federal legislation on abortion. It would then be up to the state of Kansas to allow it and Pennsylvania not to allow it.

reason: How do you feel about Bush's likely appointments to the Supreme Court?

Napolitano: I am optimistic about President Bush's appointments because I agree with some of the deep libertarian strains of his favorite justice, Justice Scalia. When the government told the court earlier this year that the president could lock up an American and throw away the key, that the military could take people to Guantanamo Bay and do what it wanted with them there because the Constitution didn't apply, the Court rejected those notions by a vote of 8 to 1. The strongest pro-liberty argument, the strongest argument against this extraconstitutional behavior, was written by the most conservative justice, Antonin Scalia. So there is hope, I think, that people of like mind [will be appointed to] the Court.

reason: Who would you like to see on the Supreme Court?

Napolitano: I would like to see people who believe that the Constitution means what it says and take rights seriously. Jay Michael Luttig is a judge in the United States Court of Appeals for the 4th Circuit, a former clerk for Justice Scalia. He believes the Fourth Amendment means what it says; the First Amendment means what it says.

reason: How do you feel about Alberto Gonzales as attorney general?

Napolitano: He will be the first attorney general in American history, publicly, to be in favor of torture. The others may have been in favor of it privately, but Al Gonzales is in favor of it publicly. This is an untenable position to take.

reason: What's your wish list for ending constitutional chaos?

Napolitano: First thing we should do is abolish the 16th Amendment. That would make the income tax unconstitutional, which is what it was until we enacted the 16th Amendment (even though we had two income taxes before then). That of course would starve much of the federal government out of existence.

reason: Well, that's not going to happen.

Napolitano: Not in your lifetime or mine, but it's on my wish list. I would change the third word of the Constitution from people to states because it was the states, not the people, who enacted the Constitution. And I would put the word expressly back in the 10th Amendment [before delegated], which is where it was until it was removed by a political maneuver before the final document was sent to the states for ratification. I would define the word regulate in the Interstate Commerce Clause in its true meaning, which is "to make regular," not to control every aspect of interstate commerce. In my world, the federal government would be dependent upon the states and excise taxes for its financial wherewithal. It would be limited in its scope to the 18 powers given to it by the Constitution. The states would legislate for the health, safety, welfare, and morality of the people. All government would be required to respect the natural rights of everyone.