Home Judge’s Opinions My Top 10 Legal Stories of 2012

My Top 10 Legal Stories of 2012

by Andrew P. Napolitano
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1. The Patient Protection and Affordable Care Act

President Obama signed into law a 2,700 page bill that gave the federal government the power to micromanage the health care of every single American. The law as written comes into effect in stages, but when fully implemented in 2014, it will raise your taxes, steal your freedom, invade your privacy, and ration your health care. It was not supposed to be this way. We elect the government. It works for us. How did it get so removed, so unbridled, so arrogant that it can tell us how to live our personal lives? The Supreme Court said it can.

2. Voter ID Laws and Provisional Ballots

The argument in favor of voter IDs is that the state has an affirmative obligation under the U.S. Constitution to guarantee the right to vote. That right is diluted and even destroyed by voter fraud. The argument against the IDs is the right to vote is a fundamental right, in the same category as the right to speak and worship. The long-term problem is the gradual state-by-state requirement for voter IDs will lead to national IDs and all the awful authoritarian controls that they imply.

3. Immigration: Arizona vs United States

The Supreme Court has ruled consistently throughout the 20th century that immigration is an area of human behavior and governmental regulation granted exclusively by the Constitution to the federal government. When confronted with Arizona’s law, which basically supplants federal law with an Arizona version of it–a version that permits the stopping, searching, and arresting of persons on the basis of their appearance–the federal district court and circuit court followed the Supreme Court precedents and invalidated the Arizona statute. If our rights come from our Creator–as the Declaration of Independence declares–how can they differ because of where our mothers were when we were born? The Supreme Court told Arizona to stay out of immigration.

4. Affirmative Action: Fisher vs University of Texas

The University of Texas (UT) is owned by the state of Texas, and hence its freedom to make choices is regulated by the Constitution. Nevertheless, UT takes race into account in admitting students. The 14th Amendment to the Constitution has been uniformly interpreted since 1954 to remove race from the decision making basis of all states and entities owned by the states. For 50 years, the law of the land has been that the Civil War and the Civil War Amendments (13th, 14th, and 15th) have served to remove race from the state’s menu of decision making factors. The willingness of the Court to take a case in 2012 nearly identical in facts to a case upon which it ruled as recently as 2003 is very unusual and has caused speculation that the Court will reverse itself.

5. Right-to-Work Law

In a right-to-work state, the state does not force people to join labor unions. In a non-right-to-work state, the state requires everyone in certain industries to join or pay dues to a labor union. The unions have gotten into bed with the politicians and voted for politicians who have enacted legislation that has forced people to violate their freedom of association rights by choosing not to associate. The First Amendment guarantees freedom of association, and its reciprocal, the freedom not to associate. For the state to force anyone to associate with a group of people the person chooses to reject and to pay money to that group, violates fundamental freedoms and is a form of theft.

6. Same-Sex Marriage

In a very famous case called Loving vs Virginia, the Lovings were a bi-racial, opposite sex couple who got married in the District of Columbia and then moved back to their native Virginia. The police broke into the bedroom of their home in the middle of the night and arrested them because Virginia law prohibited bi-racial couples. The case made it to the Supreme Court and the ruling invalidated the law that prohibits bi-racial couples, but it also said your right to choose a mate is a fundamental liberty with which the state cannot interfere. Obviously the case did not involve same-sex marriage but the language is clear and that language has been undisturbed by the Supreme Court since the opinion came down in 1968. Expect the same rationale in the same-sex marriage cases.

7. Domestic Drones

The use of drones domestically is a constitutional nightmare in the making. The FAA is predicting 30,000 drones will fill our skies in the next decade. The use of these drones by the government to gather information about human beings by observing them on private property or peering into their homes or other non-public places is a violation of privacy under the Constitution, and thus requires a search warrant issued by a judge based on probable cause of the existence of criminal evidence concerning or from the person targeted by the drone. The difficult cases will come when the proper use of a drone (searching for a missing child) uncovers evidence of criminal behavior for which it was not looking, and in violation of the privacy rights of the person whose behavior it uncovered.

8. Stand Your Ground Laws

Under Florida law, and the laws of most states, second degree murder requires proof of an intent to kill, and manslaughter requires proof of an intent to shoot; and ‘Stand Your Ground’ (meet deadly force with deadly force) is a defense to both. Thus, under simple self-defense, if George Zimmerman reasonably believed that only the use of his gun would save him from whatever he reasonably believed Trayvon Martin was doing or about to do to him, the defense can exculpate him or reduce the level of the crime from murder to manslaughter.

9. Fast and Furious

In Fast and Furious, the government lied to the public and the Department of Justice lied to the Congress. ATF officials did break the law by intentionally causing the movement of military-grade weapons into the hands of known violent criminals. We know that the ATF and the FBI lost track of over 1,000 of the guns in the program. The use of one of these guns apparently contributed to the death of a federal border patrol agent, and only through that tragedy did all this come to light. This is a very black mark on contemporary federal law enforcement at the highest levels.

10. Marijuana Legalization

The first issue regarding legalization of marijuana is political. In Washington state and Colorado, the legislature lacked the political will or courage on its own to legalize the right to ingest whatever one pleases. In Colorado, for instance, the legislature defeated it. The public overroad its own government with a referendum. The constitutional issue is that the possession of marijuana for all purposes is a felony under federal law. This is a perfect example of where state law and federal law are in direct conflict. Under the Constitution, the states maintain the right to nullify federal encroachments upon their sovereignty or upon the natural and constitutionally-guaranteed rights of folks in those states. The last issue is economical. Legalizing marijuana will put a huge dent in the pockets of the cartels who traffic in marijuana, and will lower its cost. These are times that call for more freedom, rather than less.

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. His latest is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”

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