He’s Right, But He Still Got It Wrong

Someone was watching Fox News, so you don’t have to do it yourself. Which is good, because they caught this op-ed, which has some rather surprising content for the Murdoch Network:

Judge Napolitano is right that these provisions of the USA PATRIOT Act are absolutely obnoxious from a Constitutional and civil liberties perspective. But I don’t understand why he’s linking them to the First Amendment. That’s just plain bad scholarship.

A law that permits an investigative agency to effectively write its own search warrants (which isn’t technically how the law is written, but is what it amounts to) violates the Fourth Amendment, not the First.

A law that prohibits your disclosure of the fact of service of a search warrant to your attorney violates the due process and self-incrimination clauses of the Fifth Amendment. I see where Napolitano is going with the claim that talking to your priest about the warrant violates the Free Exercise Clause of the First Amendment, but that doesn’t apply. In nearly every kind of case I can imagine, one could confess your sins and seek spiritual guidance from a clergyman without discussing the involvement of the authorities in searching for evidence of a crime.

Yes, the First Amendment’s free speech guarantee, and the reasons why it’s there, are much easier to understand than the more complex protections given to criminal suspects and defendants by the Fourth and Fifth Amendments. But Napolitano isn’t doing anyone any favors by suggesting that free speech is implicated this way, because the anti-disclosure provision of the USA PATRIOT Act forbids you from talking about the service of the warrant. (In fact, this provision of the law does implicate freedom of speech, in that it constitutes a legislative prior restraint. But Judge Napolitano didn’t talk about that.)

I was also annoyed at his claim that freedom of speech is a “God-given right,” which he mentioned twice. Freedom of speech is a very important right, but even if you’re a believer, you’ve got to admit that claiming that this “right” comes from God is a fairly tortuous interpretation of its origin. God-focused societies have historically not been places where free speech is valued as an inherent good. The Bible itself contains prohibitions on blasphemy and witchcraft, which are both obviously protected by the First Amendment. Worshipping as you pleased, or criticizing the church of the prevailing authorities, was a good way to get yourself burned at the stake (if you were in the Christian nations of Europe), beheaded with a scimitar (if you were in one of the Muslim empires in Africa or Asia) or stoned to death (if you were in one of the several Jewish kingdoms in and around present-day Israel). Tolerance of different modes of worship, and the very concept of free speech (at least as we know them today), are the products of Enlightenment-era liberalism, not the products of theology.

That’s not to say that religious people devalue these fundamental freedoms. Quite the opposite; many look to history to see the bad things that happened to various sects, and they realize that a certain degree of toleration is good for their own faith as well as preventing violence. Still, Napolitano’s linkage of religion and liberty is intellectually ill-conceived; the two are simply different things. With liberty, religion thrives (or not, but it usually does) on its own merit. Without liberty, religion is suppressed and punished (excepting, of course, the orthodoxy promoted by the powerful). With religion, liberty is enriched as citizens are given a range of avenues in which to explore different visions of the world and learn about themselves and others. Without religion, though, liberty still survives quite nicely — a bit more blandly, perhaps, but nevertheless there is still debate about politics, art, economics, and a variety of other subjects.

We should be outraged at the USA PATRIOT Act. We should be upset that this sort of law is on the books. We should be angry at the government for doing to us today exactly the sort of thing that King George did to our forefathers in the 1760’s. But I think being upset for the reasons that Napolitano suggests is to not just oversimplify but to actually misunderstand what our freedoms really are.

(I was also really annoyed by the part in the end where the camera focused on a fraction of the judge’s mouth and his voice was made to sound like a robot. One wonders what the producers were thinking. But on the other hand, I kind of like the title of Judge Napolitano’s book.)

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. You still don’t get it. I think it’s time for me and my buddies Adams, Jefferson and Franklin to take you out to the woodshed and go over a few things. What makes America different? We get our rights, not from the king, but from a higher authority.We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,…

  2. And to which “Creator” do you refer? Zeus? Ahura Mazda? Bhrama? Allah? The Easter Bunny? The Flying Spaghetti Monster?Show me in the Constitution where the existence of this “Creator” is acknowledged, or how that document claims we are dependent upon Him for our rights.While an important part of our history, the Declaration of Independence is not the foundational law of the nation and was never intended to be such. It contains stirring rhetoric and acknowledges the existence of basic human rights, but does not provide any form of substantive protection for them. Nor does our foundational law acknowledge even the existence of a deity.God has no more to do with human rights than does the Tooth Fairy. We derive our rights from our humanity, not by divine fiat.

  3. You are absolutely right, he was referring to Zeus. Ben ask, “Tom why not just say Zeus”. Tom replied, “Zeus would never past the mustard with Hancock and “old muttenhead” would never read it to his troops in the field.

  4. you are all missing the key point here….The Creator is acknowledged. Put what ever you like to replace that word, but the Constitution does acknowledge a higher authority. Condsider our own foreign policy. We cannot mention the country (or it’s rulers) in any legislation because that would recognize that country as being in existence. Why would we consider any less for our constitution??From where do we get our dignity? Not from the tooth fairy…. And animals don’t have any rights. If they do, let THEM argue for their rights in a court of law; let them take part in the government of their societies. We do have dignity. And it is from our Creator.I agree that religion should not be in the government, but to declare that religion has nothing to do with our government is just plain silly. Our government is founded on religious freedom and that in itself recognizes that there is religion. And that religion should be taken into account in all legislation. That allowance should not mandate a religion but be written such that it infringes on no religion. Separate but impartial.You’re incorrect TL (and I’m sure I’ll get a lengthy detailed rebuttal). Although God is not mentioned in the Constitution (see an earlier discussion), a Creator is mentioned. Deal with it…..

  5. You both missed both of my points.1. If Jefferson had attributed the origin of our natural rights to Zeus, he would obviously have been wrong, wouldn’t you agree? That being the case, there is no rational reason to accept Jehovah as the source of those rights than Zeus or the tooth fairy. Let’s assume that you are correct in suggesting that Jefferson was a believer of some kind (and he may have been; he was famously private about that aspect of himself), but what does that tell us about the true source of our natural rights? Jefferson’s beliefs about the existence of a Deistic Creator, a Christian version of Jehovah, or the Flying Spaghetti Monster is irrelevant to the question of the true source of these rights. Jefferson was apparently comfortable with quite a few contradictory things — the next clause of the sentence you quote is “…and among those rights are life, liberty, and the pursuit of happiness.” All men being “created equal” and endowed with the “right to liberty” is fundamentally incompatible with slavery, yet Jefferson owned lots of slaves (and unlike Washington, he did not manumit them upon his death). What he meant by “liberty” may not have been what you and I would mean by that word — and so too what he meant by the word “Creator” is also subject to some critical inquiry.2. The Declaration of Independence is not a law. The U.S. Constitution recognizes natural rights in the form of law. I’m not particularly interested in the private beliefs of Jefferson (or Franklin or Washington) towards a particular god.If you’re going to posit that Jefferson and Franklin were Deists who believed in a supernatural creator, I wouldn’t disagree with that. Nor would I consider it important towards either the question of what the proper relationship of government and religion should be, or the question of whether they were right to believe in such a creator.If you’re going to posit that religion played an important role in the early stages of America’s creation, I wouldn’t disagree with that, either. So did tobacco and slavery. That doesn’t mean that we need to treat religion today the same way that the Founders would have, any more than we would treat tobacco or slavery the same way they would.If you’re going to posit that freedom of religion is a fundamental right, I would enthusiastically agree. No governmental agency, no matter how powerful, can ever change what you feel in your conscience to be the truth about the universe. And the First Amendment is very clear on this point that you can worship, or not, as you choose and the government can’t say “boo” about it.None of which, of course, provides the remotest bit of support for the proposition that God exists. But I do agree that you’re free to perpetuate whatever Bronze Age superstitions you wish, despite the utter and complete lack of evidence to support such bizarre and outdated beliefs.

  6. Oh, and OP, the “Creator” is mentioned only in the Declaration of Independence. Neither the word “Creator,” nor any other synonym for “God,” is found in the Constitution. The only references to religion of any kind in the Constitution are the prohibition on religious tests for holding office and the First Amendment’s prohibition on the establishment of a state religion or interference with the free exercise of religion.

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