Lies the government told you

by Andrew P. Napolitano

  That the target of the Cole attackers was military property manned by the navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks, all were tried in federal courts. The “American Taliban,” John Walker Lindh, and the notorious wouldbe shoe bomber, Richard Reid, were tried in federal courts. Even the “Ft. Dix Six,” five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.

  The Framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty, or property from any person without the intercession of a civilian jury to check the government’s appetite and to compel transparency and fairness by forcing the government to prove its case to twelve ordinary citizens. Thus, the Fifth Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the Sixth Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

  Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process—be that person a citizen or an immigrant, someone born here, legally here, illegally here, or whose suspect behavior did not even occur here.

  Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a “war,” there would be no limit to the government’s ability to use the tools of war to achieve its ends. We have a “war” on drugs; can drug dealers be tried before military tribunals? We have a “war” on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared “war” on Fox News. Are my Fox colleagues and I in danger of losing our constitutional rights to a government hostile to our opinions?

  I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naïve. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.20

  Guilty Solely Through Existence

  If you find that the standard of “innocent until proven guilty” has been categorically breached by the government time and time again, with no regard for due process and with continuing deception, then I can only imagine your outrage when you learn about a Federal law that in essence ensures you are guilty no matter what your intentions may be. This is the Sherman Antitrust Act of 1890. This one-hundred-twenty-year-old piece of legislation was the beginning of the ambiguous “Progressive” antitrust laws in the United States. It was hailed as ensuring that consumers would now be safe from the big, bad corporations who were going to get together and make everything unbelievably expensive.

  After the Sherman Act became law, the business folks had a lot of trouble: If their prices were too high, that meant they were intending to monopolize; if they charged lower prices than the competitors, then they were charged with unfair competition; and if they charged prices similar to everyone else, then they could all be charged with conspiracy.21 Because the law is unclear, and its interpretation is constantly shifting and changing, a businessperson cannot know whether she or he is doing something legal or illegal. The president of United States Steel Corporation noted in a speech in 1950, which he entitled “Guilty Before Trial,” that if the antitrust laws persisted and were to be enforced “impartially against all offenders, virtually every business in America, big or small, is going to have to be run from Atlanta, Alcatraz, Sing Sing, Leavenworth or Attica.”22

  Unlike the “supposed” presumption of innocence for individuals in the justice system, the business folks under attack from antitrust laws are in essence guilty until proven innocent, and there is no standard on how to prove their innocence. Supreme Court Justice Robert Jackson, when he was head of the Antitrust Division of the Department of Justice, noted that it “is impossible for a lawyer to determine [in advance] what business conduct will be pronounced lawful by the Courts,”23 and that this was an embarrassing situation for everyone involved. Basically, anytime anyone goes into business, he can be automatically guilty of one violation of the Sherman Act or another, solely through the setting of prices for his product.

  The government always claims to have good reasons for antitrust laws. Its original reasoning was that “trusts [an ancient word for commercial agreements] tended to restrict output and drive prices up.” Of course, there was no evidence in support of this theory at the time that the Sherman Act was passed. Rather, there is actually evidence that the trusts reduced prices, and Congressman William E. Mason (R-IL) stated, on June 20th 1890, that “trusts have made products cheaper, have reduced prices” but then also claimed that this was irrelevant, because by making prices lower, the trusts had effectively “destroyed legitimate competition and driven honest men from legitimate business enterprise.”24

  The basic rationale behind antitrust legislation is, as usual, the public safety; specifically economic safety. The feds claim they can prevent companies from restricting the market and therefore raising prices and preventing technological advancement. The government assumes that without its protection, the people will be gouged by corporations who would form monopolies or cartels, or “trusts,” and engage in “predatory practices.”

  These are the government terms that strike fear into the average person. All of us, even those who have not studied economics in any way, have learned the dangers of these actions. We hear the word monopoly and think that it means the end of competition in the market, and the beginning of one giant corporation taking every little cent of our money. Yet, when one actually considers the monopoly in a free market, it should be simple to see that the only monopoly that could survive was one that offered the best products at the best prices.

  Any corporation needs customers who are willing to buy from it. If it is monopolistic and does not offer the best products, other entrepreneurs will start their own business, and customers will leave the monopoly and move to the competition. And if it does offer the best product for the best price, then why is that movement a bad thing? Do we honestly mind paying less for a better product because it is produced by a company that sells more than 50 percent of those products in a given market? In reality, the only monopolies existing currently are those run by the government, like the post office and utility companies, which are immune from the antitrust laws. Sadly, as we know, the government does not practice what it preaches.

  But if the whole purpose of the Sherman Act, as stated by the government, has been to ensure competition, was not part of competition the idea that some lose while others win? Even the government could not keep its sham reasoning straight. And the reason for this was explicitly stated by the New York Times, on September 29th 1890, which concluded “[t]hat so-called Anti-Trust law was passed to deceive the people and to clear the way for the enactment of this . . . law relating to the tariff.”25 Tariff laws were, of course, very beneficial to the government collecting the tariffs, so there is no question why it would want to ensure that the public was kept from those truths because the Sherman Act falsely proved to everybody that the government was protecting them.

  What the government hid was that it was protecting the people not from rising prices, but from reduced prices. This can be seen from the cases of U.S. v. Standard Oil of New Jersey and U.S. v. American Can. These are the seminal antitrust cases that influenced all those that were to follow. In the 1911 case of U.S. v. Standard Oil of New Jersey, among the charges laid was raised prices to consu
mers. Yet petroleum prices had decreased during the alleged monopolization, declining from thirty cents per gallon in 1869 to six cents per gallon at the beginning of the antitrust trial.26 The company was in the end broken apart by the United States Supreme Court because it had allegedly “intended to monopolize.”

  The same result occurred with U.S. v. American Can, a 1949 case where a judge found that the company had “coerced its customers into signing long-term leases.”27 As pointed out by D. T. Armentano, this so-called coercion was effected largely by attractive terms and generous price discounts for large orders. It was freely offered and freely bargained for. The company had violated antitrust laws because it gave bulk-order discounts! What is most egregious is that the judge ordered the company to raise its prices, reasoning that this would help the more expensive and less efficient companies compete in the market.28

  Ayn Rand once aptly stated that “free competition enforced by law is a grotesque contradiction in terms.” The result of this deceptive contradiction of enforced free competition is illustrated most effectively in the case of the Aluminum Company of America (Alcoa), which was charged with 150 violations of antitrust law and which the federal government pursued for over thirteen years in court, even though at the end of this terrible odyssey, the trial judge in 1939 dismissed all the charges. Unfortunately for Alcoa, the United States Court of Appeals for the Second Circuit essentially faulted Alcoa for being too successful, deeming that it was anticompetitive not because it attempted to drive out competitors through immoral tactics, but rather because it was too efficient and charged prices that were “too low.”29

  Yet, if these are the “monopolies” that the government is protecting us from, the lowest-price monopolies, is the government even performing anything remotely beneficial to the public? Why is the government spending massive amounts of its time and our money prosecuting corporations for charging low prices? If we agree that low prices are good for consumers, the only reasoning behind the government’s actions stems from the settlements that are often the result of these antitrust suits. Corporations are paying out millions of dollars in fines for their purportedly harmful activities. And while prices go up for the consumer, at least the government has been able to make a quick buck, all in the guise of the “public interest” myth.

  When people argue that the laws protect competition and efficiency, they should be reminded of these decisions. In essence, the antitrust laws are like pulling over drivers driving at the speed limit and staying within their lanes because careful conduct could be evidence that they are drunk drivers who are trying not to appear drunk, and when finding they are not guilty of being drunk, finding them too sober to drive.

  Like traffic tickets for the state and local police, modern antitrust cases are just quick cash cows for the federal government. That is the modern law of antitrust: assuming guilt by status; fitting the circumstances to whatever crime may be needed; and using “crime” to fill government coffers.

  The Presumption of Deception

  We have merely touched upon the multitude of ways in which the government seizes our bodies, steals our property, and crushes our liberty with one side of its mouth, while proclaiming the presumption of innocence with the other. This presumption is the most fundamental jurisprudential value that “keeps the government off our backs,” to quote Justice Douglas. If the government can destroy this, however slowly, what will be next? What will remain of our freedom?

  Lie #13

  “The Constitution Applies in Good

  Times and in Bad Times”

  On April 16th 2007, Seung-Hui Cho, a student at Virginia Tech University in Blacksburg, Virginia, came to school and killed thirty-two of his classmates with a gun before taking his own life. By January 2008, President George W. Bush had signed into law a measure that aimed to keep firearms from people with mental illnesses.1 The law provided up to $1.3 billion in federal grants to states, so that they could improve their tracking of mentally ill people who should not be permitted to purchase guns.2 A law like this was proposed in the mid-1990s, but the mental health lobbies argued that it stigmatized the mentally ill.3 After the tragedy at Virginia Tech, however, fear smothered freedom. Not one member of Congress voted against the law.4

  When disastrous situations like the Virginia Tech shooting or 9/11 or Pearl Harbor occur, it is a tragedy for those affected. Yet, oftentimes the federal government utilizes the panic surrounding these situations to grab more power for itself. The government lies by telling us that it must infringe upon our rights in order to keep us safe. But if the steps taken by the government are truly necessary evils, why doesn’t the government tailor the scope of its power as narrowly as possible? Instead, the government enacts laws quickly amid the hysteria, thereby using people’s emotions and irrational fears to gag and blindfold them while their rights are swindled away. Many of these laws are then interpreted broadly as a mechanism for the government to seize more power, acquire more resources, and waste more taxpayer money.

  Typically under these climates of hysteria an “anything goes” attitude prevails in Congress and, like patriotic lemmings, many politicians follow the leader and succumb to wishes of the political party to which they belong. Because they constrain their speech in an effort to be politically correct, justice is lost, and unconstitutional laws are passed.

  Often the people don’t speak up either, because they, too, are afraid and tend to trust government to protect them in times of crisis. We are socialized not to rebel, not to question authority or to resist going along, because it is not polite to speak up, to state the obvious, to rein in government power. Those who object to government over-reaches are often put on the defensive and asked: What do you have to hide? Yet, we need to amend this thinking because in many of these hysteria-laden situations, we lose our rights and our identity as a free people. Thus, long after the crisis has settled, Americans still must endure the legacy of laws passed during the hysterical climate.

  Guns

  In recent history, liberal and even conservative politicians have developed an obsession with stricter gun control laws, a policy that they believe will decrease violent crime in America. Some of them honestly believe that fewer guns will lead to fewer crimes. Some are just afraid of guns. And some want a disarmed public. Sadly, they are all wrong. Every European despot in the past two hundred years has attempted to disarm the public so as to make and keep it docile. American politicians, most of whom have never been near a gun for self-defense, will not address this. In their effort to pass gun control laws, politicians have used national tragedies to exploit our fears.

  President Bill Clinton, who had been a staunch supporter of gun control throughout his presidency, used the tragedy at Columbine High School in Littleton, Colorado, to bolster his argument for more stringent gun laws. On April 20th 1999, two deranged Columbine students, Eric Harris and Dylan Klebold, shot and killed twelve students and a teacher. They injured twenty-one students, three of whom were trying to escape from the building. Immediately after the massacre, Harris and Klebold shot and killed themselves.

  President Clinton, most Democrats, and many Republicans saw this tragedy as an opportunity to resume the gun control debate in America. In 1999, the United States Senate consisted of fifty-five Republicans and forty-five Democrats. The Columbine tragedy, however, caused the Republicans, a party that typically supports gun rights, to let their guard down,5 or show their true colors. Less than a month after Columbine, with Vice President Al Gore serving as the tie-breaking vote, the Senate voted in favor of a bill requiring background checks for firearms purchasers at gun shows and pawnshops.6 (Luckily, this bill never passed the House of Representatives, and thus was never enacted into law.) In light of Columbine, Clinton also launched a national campaign advocating less violence in music, movies, and video games.7 In fact, Clinton signed an executive order mandating a study of how the entertainment industry markets music, movies, and video games.

  It seems following each trag
edy involving guns, the government attacks the guns and not the sick individuals who abuse them. The government paints guns as evil, and conjures up the notion that we will be safer only if criminals have less access to guns. This is completely false. Lance Kirklin, a student wounded in the Columbine shooting, put it best when he said, “You don’t see guns jumping off the table and shooting people.”8 The problem is not easy access to weapons. The problem lies in the nature of the killers who commit these horrific crimes. No law restricting individual rights will stop them from carrying out their objectives.

  The government, however, continues to succumb to hysteria over guns, as well as violence in movies, video games, and music. It ignores the real source of the problem because it cannot regulate what people think. On the other hand, it can throw money around restricting the use of everything under the sun, and pretend that it is solving problems that no law can prevent.

  The government should not interfere with individuals’ rights to protect themselves against murderers like the Columbine and Virginia Tech students. Brave citizens used their right to bear arms to suppress a shooting at the University of Texas, Austin, on August 1st 1966. On that date, Charles Joseph Whitman, a twenty-five-year-old Florida native and former UT engineering student, opened fire from the twenty-eighth-floor observation deck of the school’s landmark 307-foot tower.9 Whitman killed sixteen people and wounded thirty-one before he was killed by police.10 Until the Virginia Tech massacre, the Texas shooting was the country’s deadliest.11

  Whitman’s shooting could have been much worse, though. Brave Texans used their guns to fight back and prevent Whitman from doing even more damage. One English professor, who stored his deer rifle and boxes of ammunition in his office, shot at Whitman from his office window.12 A man by the name of Bill Helmer, a witness to the shooting, stated that Whitman was leaning over the edge of the observation deck to shoot at people, but did not have this luxury once people started shooting at him.13 According to Helmer, the Texans’ exercise of self-defense forced Whitman “to shoot through those drain spots, or he had to pop up real fast and then dive down again. That’s why he did most of his damage in the first 20 minutes.”14 Unfortunately, the Virginia Tech campus was a gun-free zone.15 Texas Representative Joe Driver, remembering the UT shooting, stated that “[i]f Virginia Tech had not kept the campus a gun-free zone, people could have been saved.”