Judge Andrew P. Napolitano*
Because of the way the news business works, I am writing this column before the close of the polls in the so-called midterm elections, and hence as I write, I do not know their outcome. Will the Republicans or the Democrats control the U.S. Senate for the next two years? Will it make a difference?
The two major political parties are more alike than they are different. On the two paramount issues of our day -- war and debt -- they are identical. With the exception of Democratic progressives and Republican libertarians, the two parties stand for perpetual war and perpetual debt. Both stances increase the power of the government, and each invites present and future destruction.
A healthy society should avoid war at all costs, except when immediately vital for its own self-defense. A healthy government should pay its bills and not push them off to the next generation. Do you know any American whose freedom and safety have been enhanced or fortified because of all our empire building in the Middle East? Do you know that the federal government borrowed two trillion dollars to wage these wars and now spends twenty cents of every dollar in interest on its debt? Do you know that the congressional leadership and most of the rank and file of both political parties have brought this about?
There are two great freedoms being assaulted under the radar that will soon come to the fore: the freedom to live and the freedom to speak. Both parties use abortion as a litmus test. You want the Democratic nomination for any federal or state office; you need to support a woman’s right to abortion. You want the Republican nomination for any federal or state office; you better claim that you are pro-life.
I say “claim” because that’s all Republicans need to do to satisfy each other. If Republicans truly were pro-life, they’d have passed a one-paragraph statute when they ran the Congress and George W. Bush was in the White House that legally defined a fetus in the womb as a natural person. Of course, morally and biologically, a fetus is a natural person. The fetus has human parents and possesses a fully actualizable human genome -- all the genetic materials needed to grow and flourish and possess self-directed humanity. But no such legislation ever came.
Since the Supreme Court denied personhood to every fetus in 1973, much as it had done to African-Americans in 1857, more than 44,000,000 babies have met the abortionists’ vacuum and scalpel. Will a newly revived Republican Congress address personhood to the abortionist in chief in the White House? Don’t hold your breath.
After the right to life, the next great freedom under siege is the freedom of speech. Here, too, both parties in Congress have failed us. When Congress in 2001 enacted the Patriot Act, which permits federal agents to write their own search warrants in utter defiance and direct contradiction of the Fourth Amendment, which commands that only judges may do so, it also prohibited the recipients of agent-written search warrants from talking about them. At least a half-dozen federal judges have found this infringement of speech unconstitutional, yet federal agents who serve their own search warrants continue to threaten the recipients against talking to anyone about them. This, too, came about with the support of the leadership of both political parties in Congress.
Not content with commanding silence about search warrants, the Democrats in the Senate attempted to offer an amendment to the Constitution last summer, which, if ratified, would have weakened the First Amendment by permitting Congress and the states to punish the political speech of groups. Three years ago, the Supreme Court, in a case called Citizens United, held that free political speech is such a highly valued and constitutionally protected asset in American society that it may be enjoyed not only by individuals, but also by groups of two or more persons, such as labor unions, foundations, nonprofits, think tanks, partnerships and corporations.
Outraged that corporations can spend money to affect the outcome of campaigns, rejecting the concept that buying an advertisement in a newspaper or on TV is speech, and wanting to remove the word “free” from free speech, the Democrats attempted to circulate to the states an amendment to the Constitution that would have made the government the arbiter of acceptable political speech. Is Vladimir Putin consulting the Democrats?
Yet, did you hear any Republicans in the recent elections call out any Democrats for this stunt? The First Amendment has remained pristine since it was ratified in 1791, and the Democrats want to change that, and the Republicans have gone mute.
A lame duck President Obama facing a Congress he hates and fears may become reckless. We should expect that. But if somehow he facilitates the killing of more babies in their mothers’ wombs or the suppression of more political speech from his critics, what will a Republican Congress do? What is its track record?
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.