Andrew P. Napolitano
Originally published in I Chose Liberty: Autobiographies of Contemporary Libertarians.
Winston Churchill, of whose Big Government values I have not been fond, did have a great gift for words. He once famously said, “Any man under thirty who is not a liberal has no heart, and any man over thirty who is not a conservative has no brains.”
In my case, things didn’t work quite that way. As an undergraduate at Princeton in the late sixties and early seventies and later as a law student at Notre Dame, I was a strong and vocal conservative, as the word was then understood. At the height of the anti-Vietnam War movement, I arranged a campus visit to Princeton by William F. Buckley, Jr., the leading conservative intellectual at the time. I brought in other speakers, moderated panels, orchestrated rallies, and made no secret of my political views. I even once wore a T-shirt in 1970 that proclaimed “Bomb Hanoi”! I thought Richard Nixon’s militaristic, law-and-order, pro-police platforms in 1968 and 1972 were right for the country.
Fast-forward two decades, however, and you will find me as a judge invalidating police drunk-driving roadblocks in New Jersey and forbidding the cops from stopping someone on a whim. Before my ruling, the police in New Jersey could and did stop and search any cars they wished. They didn’t need any rationale; you didn’t even have to be driving erratically since they just stopped cars because they had the power to do so. My published opinion, which ruled that such stops were illegal in the absence of some demonstration of illegal behavior, like weaving in and out of traffic or bolting out of a bar’s parking lot, was upheld by the appellate courts. Today in New Jersey random stops by police are illegal, and any evidence acquired during them is supposed to be excluded from trial.
I am proud of that opinion. But it is one that I would have railed against as a conservative college student and law student and active Republican practicing attorney. My younger self would have said, “So what’s the problem? If you’re not driving under the influence, what does it matter if the police stop and search you? Think of all the drunk drivers those stops will get off the road.”
It is a frequently made argument: Why not give up a little personal liberty, like the right to drive your car without being stopped by the police on a whim, in return for temporary safety, like fewer drunks on the road? If the random stops keep one drunk driver off the road and save one child’s life, aren’t they worth the inconvenience?
Don’t be like the younger me. Don’t be too quick to agree. Consider first Benjamin Franklin’s famous pronouncement: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Is driving a car without being pulled over by the police an “essential liberty?” Will the drunk drivers that such pull-overs find give you a “little temporary safety”? These are not trivial questions. When Franklin made his pronouncement in 1759, he certainly didn’t think similar questions of the day were trivial. And that was back when there was no country, no Constitution, and no guarantees of liberty.
The Constitution says the government cannot arrest you without probable cause—specific evidence that you more likely than not committed a specific crime. And our courts have uniformly held that police can’t stop you without articulable suspicion—credible reasons that can be stated to a neutral judge as to why your behavior is suspicious of criminal activity. Think about it. If the police can stop you for any reason, then they can stop you for the wrong reason, like race or appearance or religion or politics or personal vendetta, just as the SS and the KGB did to persons in Nazi Germany and in the Soviet Union.
So why my change in philosophy and outlook? What caused me to flip from being a law-and-order conservative to a true libertarian? The answer: My eight years on the bench.
It took a while, but over time I learned that once the police have pulled you over, they can “find” all kinds of things in your car. And in some cases, if they don’t find what they want, they are not above planting it; like a little bag of cocaine placed under the passenger seat by one cop while another has you in the squad car answering questions. Not all cops, of course, do this; but it’s a common enough occurrence to be worried about.
Even if the defendant is a drug dealer, with a multi-page rap sheet; even if his harm to the community is palpable and real; even if the police, the prosecutors, and the courts are all convinced beyond a reasonable doubt that there was a bag of cocaine somewhere in the car; if the evidence was not obtained in accordance with the Constitution; if the police did not have a lawful basis for stopping and searching the car; if the police broke the law in order to enforce it, then the evidence of criminality must be excluded at trial. That is the law today. If the police can mow down the Constitution to nail the Devil, they can mow it down to nail anyone. The history of human freedom is paying careful attention to the government’s procedures.
I know I’ve wandered from the main question regarding my profound change of philosophy, heart, and general view of the relationship between individuals and government. I’m not avoiding it, exactly, so much as sneaking up on it gradually.
According to an old joke, “a conservative is a liberal who’s been mugged, and a liberal is a conservative who’s been arrested”; meaning, of course, that regardless of your beliefs in the abstract, one’s personal experiences tend to awaken one to reality, however unpleasant it may be.
Well, that’s very much what happened to me. As a judge, I heard the police lie and lie again. I remember one case in which a driver had been pulled over and directed to walk away from the car by one cop, while his partner secretly kicked in the car’s tail light. Why? To give the police a legal reason for the pull-over should it come up in court; which it did, of course. I remember another case in which a New Jersey State Trooper testified that he observed a crack in a tail light cover from a distance of six-tenths of a mile!
The first time a judge encounters behavior of this sort on the part of men and women who carry badges and guns and swear to uphold the Constitution (“I do solemnly swear that I will support and defend the Constitution . . .”) and swear to tell the truth (“. . . the whole truth and nothing but the truth . . .”) and then do neither, something inside you just dies. To someone from my blue-collar, lower middle class, pre-Vatican II Roman Catholic, respect-for-authority background, it was simply inconceivable.
You tell yourself that maybe it’s just one cop. But then it happens again and again. As you gain more experience, you find police not only lying under oath, but using forced confessions and prosecutors unlawfully withholding evidence helpful to a defendant, all in an effort to bring about convictions.
And then a cop I knew well came before me and lied. It was about a cocaine bust. I knew him so well I could tell he was lying to my face under oath when he told me the implausible reason about why he pulled over a known drug dealer and then just happened to observe neatly packaged cocaine on the front seat of this experienced drug dealer’s car. My now former-friend knows better than to admit that he lied. He broke the law by lying under oath (why wasn’t he prosecuted for perjury?), and because of that a guilty defendant walks free; but from the police officer’s view, he got the junk off the street (the minor amount of cocaine he seized), and so he and his fellow police officers view this as a “win”, even though they broke the law.For eight years I was a judge of the Superior Court of New Jersey. I have tried over one hundred fifty jury trials: murders, rapes, robberies, drug possession, medical malpractice, antitrust, and personal injury. I have sentenced over one thousand people. I have addressed many thousands of motions, hearings, and divorces. I was a professor of law at Delaware Law School (now Widener Law School) and taught constitutional law and criminal procedure for one and a half years there, and I taught constitutional law and jurisprudence as an adjunct professor at Seton Hall Law School for eleven years. I have written five books on the Constitution and have given thousands of lectures, broadcasts, and speeches on freedom. I am no longer a sitting judge or law school professor. But what I saw and studied and strained over taught me to speak with authority. I saw the beginnings—in my lifetime—of constitutional chaos.
The effect of my professional intimacy with the system was a sea change in my thinking. I can’t point to any single moment of sudden and divine clarity. Instead, the acts of seeing, studying, and examining the events in my courtroom day after day eventually caused me to rethink the verities that had been literally a part of my soul since I matured into a thinking, adult human being.
The one incontrovertible lesson I learned over those hard, disillusioning years: Unless you work for it, sell to it, or receive financial assistance from it, the government is not your friend.
The practical realizations that the government lies, cheats, and steals, and the unpleasantness attendant upon the acceptance of that while sitting as a life-tenured judge, naturally brought about a thirst for an intellectual re-examination of my own beliefs on the origins of freedom and to take a second look at the schools of thought that have animated the titanic battles between liberty and tyranny.
As an undergraduate during a radical time period on American college campuses, 1968 to 1972, I studied under brilliant minds, but those with a decidedly Big Government and Progressive bent. At Princeton, I was always going against the grain. The grain in those days was anti-government, anti-war, anti-big business. Having come to the understanding in the 1990s that I had been on the wrong side of human freedom in the 1970s, I was determined to re-examine the intellectual sources that brought me there.
So, I re-read many of the great books that had influenced my youth, and I read for the first time some that I had missed. I re-read The Conscience of a Conservative by Barry Goldwater and I re-read Orthodoxy by G.K. Chesterton. I dove into John Locke, Thomas Jefferson, St. Thomas Aquinas, and St. Augustine. I re-read Capitalism and Freedom by Milton Friedman. I read essays and articles by Murray Rothbard, Ludwig von Mises, and Ayn Rand. Perhaps the book that was the capstone of reforming my approach to liberty and tyranny was F.A. Hayek’s The Road to Serfdom. I have read this masterpiece twice. I was also profoundly influenced by two other masterpieces, The Way, by St. Josemaria Escriva, and A Man for All Seasons, by Robert Bolt. I re-read the three hundred most important cases decided by the United States Supreme Court; a daunting and frustrating task. I also re-read The Just War by Paul Ramsey, a Protestant theologian who was more faithful to the Magsterium than most Catholic priests were in the 1970s, and who taught me just war theory at Princeton. I even read James Madison’s notes and other records from the Constitutional Convention in 1787.
Then I found a place that synthesized all this so nicely—LewRockwell.com, or LRC as it is known to its fans. LRC is the most important, courageous, intellectually consistent web site in the world for those who are pro-free market, pro-natural rights, anti-state, and anti-war. It provides daily intellectual, and often humorous, sustenance to those of us who believe in the primacy of the individual, and those who truly believe that the state exists for the sole purpose of defending individual freedom.
I thank God for my intellectual odyssey. I have happily arrived at the most comfortable place for all who believe in human dignity; a place prepared by God the Father out of His love for us; a place for which I would sacrifice my life rather than live as a slave; a place which is the natural residence for all human aspirations. A place called freedom.