Judging Freedom - The Constitution has failed to restrain the government with Brian Thomas

Episode Date: October 29, 2021

Judge Napolitano talks to long-time 55KRC Cincinnati radio host and lawyer Brian Thomas about why the Constitution has failed to restrain the government. #Constitution #Libertarian #DontTreadOnMeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hello there, everyone. Judge Andrew Napolitano here. Welcome to my podcast, Judging Freedom, my new podcast where I get to think whatever I want, say whatever I think, and talk to many friends from around the country.

Some will disagree with me. Some will agree with me. My guest today is Brian Thomas, who is the foremost libertarian radio talk show host in the country. I have been privileged to be his regular Wednesday morning guest, WKRC, 55KRC in Cincinnati. And my time with Brian, it's only five or six minutes each Wednesday morning is often the highlight of the week. Brian, welcome to Judging Freedom. An absolute pleasure to be here, Your Honor. And to hear you say that, and you've said that on my program so many times, and I'm always so humbled to hear you say that.

It is a highlight of my week. As I always mention, since my father was on radio for 46 years in Cincinnati, we talk on Mondays. I have to put you second place today. Right. I accept that. I can't wait to meet him, but I accept that and fully understand. Those watching now should know that Brian is a lawyer and fully trained in the Constitution.

And one of the reasons, Brian, I love being on with you is because we just talk about the Constitution as we're going to do in a few minutes. We don't tailor what we're going to say as if we're arguing before the second circuit or as if we're talking to grade school children. We just talk about the constitution. You are one of the rare people in all the media with whom I can have that kind of a conversation without, what's that mean? What do you mean? You know, we can just, we can just do it. You know why? And I give you absolute credit for this because you've done it for so many years and you get it. And I practiced litigation for 16 years. The law can be extraordinarily complex. And as you often mentioned, sometimes you will say we're getting down into the weeds here. But I know my listening audience is smart and we are able to summarize it and present it in a way together that makes perfect sense to anybody who's listening. So we can boil complex topics down to understandable,

really points of fact, and then always end up pointing to the Constitution as support for our conclusions. Yes. So the great author Malcolm Gladwell says, if you've done something 10,000 times, you're an expert at it. So in my 24 years at Fox, I explained the law on air 14,500 times. I mean, the number's mind boggling. So I guess I sort of have a feel for it. I'd say you do. But the great thing about, and I had a young man come to me one time, it was an email request. He said, you know, I'd really love to do what you're doing for a living. What do I need to do to get on a radio and talk about the type of things you're talking about? And I said, practice law for 16 years. Right. Depose garbage collectors, depose corporate executives, talk to people.

You find out, like we always say, everybody puts their pants on one leg at a time. Yes. Everybody's just a regular human being. We all have, you know, ideas and thought processes. But, you know, you start to appreciate that the world's an interesting place. There's a lot of questions that can be asked. A lot of people are afraid to answer them. Right. And they're afraid of confrontation from someone as reasonable as you or as reasonable as me and asking questions. All we are interested in is where are you coming from and what is your point of view and how is it supported by the law? I think my eight years on

the bench in which I tried over 150 jury trials forced me to learn how to explain the law to jurors, lay jurors, so they understand it. You know, every state in the union has form books and most judges would just read from the form books to the jurors. I refused to do that. I wanted to explain it from my heart so the jurors would understand it. And if I would ask them questions, you understand what I mean? And don't be afraid to say you don't understand. And often they would say, do you mean this or do you mean that? I think that results, that causes a fairer result when the jurors have a better grasp of what they're talking about. But today we're going to talk about the Constitution, something you and I talk about every Wednesday. Another great thing you do for me, as you often

have me on right after, one of my true heroes, and I think probably yours as well, Congressman Thomas Massey, who represents a district in northern Kentucky that receives the signals from your station in Cincinnati in southern Ohio. And Congressman Massey is, for the libertarians out there, which are most of the people watching and listening to us now. He's the Ron Paul of the House of Representatives today. Utterly, totally, unapologetically faithful to the Constitution, to the Declaration, and to small government principles. To have me on right after him, Brian, enhances me and makes me feel like a million bucks. Well, as I introduced you after Congress and Mass, I always say it's the greatest one-two punch in radio if you believe in the Constitution or if you're a libertarian-minded folk like you and me. We believe in individual liberty and freedom and individual choice, and we get to the Constitution and the bias for liberty in the Bill of Rights.

When the Pope addressed a joint session of Congress from Northern Kentucky named Thomas Massey said, I have an extra ticket to see the Pope, and it's on the 50-yard line, literally. So he gives me this ticket, and the Pope, I'm not a particular fan of Francis. He's too far to the left of me, but he's the Pope, and I'm Catholic. The Pope is making eye contact with me. Behind the Pope in the galleries is the then governor of New Jersey, Chris Christie. He's looking at the back of the Pope's head and he's mouthing to me, how did you get that seat? I can see him mouthing it to me because I've known Chris since we were kids. Oh, wow. All because of this non-Catholic, but beautiful, wonderful

young congressman named Thomas Massey. Unbelievable. He is fantastic. And, you know, honestly, I hate to get in religion because you and I both know that liberty and freedom transcend your religious ideology. Of course. I rely on logic, reason. And you and I both know two and two equals four. I don't care what the new math people want to suggest to you, that relative accuracy is okay. There are concrete things. And it troubles me and it's always troubled me about the offloading of religious responsibility to government and that there would be advocates in at the pulpit or in any religious forum that

would start talking about you need to vote for this particular social project for the government to take over when in fact that is an obligation that exists upon you and me as people committed to the particular faith it's not a government. And it seems to me that the Pope is undermining his own philosophy and church by trying to get government to do what individuals of faith should do themselves. Well, all of his predecessors, at least in the modern era, I'm not talking about the era where the popes were authoritarian potentates who owned land and had armies. But in the 20th century, when they wanted something done, they asked the Catholic faithful to pray for it. They didn't ask governments to do something. I could tell you

a lot of stories about this pope. But when I was teaching constitutional law and we got to the bill of rights i would say to the class what is the first liberty what is the first freedom protected in the first amendment every hand goes up and they say freedom of speech and they're wrong it's religion it is the free exercise of religion and it's the government staying the heck out of religion. Now, you and I have talked about this. The now-retired bishop of this northwest tip of New Jersey, where I am now, was the full-fledged bishop when COVID hit. And our Irish, formerly Catholic governor, Phil Murphy, maybe after next week, no longer the governor that remains to be seen. I closed all the churches and I went on air at Fox. Well,

I called up the bishop and said, you know, you can't do this. Here's the law. He said, okay, I'm opening them up. And then I went on air at Fox and boasted about this bishop opening them up and ripped into Governor Murphy. And then he sent five state troopers to intimidate a 76-year-old now retired bishop. And in a week, the churches were closed again. Then, of course, there was the famous case of the Catholic Diocese of Brooklyn, very shrewd because the bishop had three co-plaintiffs and they were synagogues in Brooklyn. So you have four plaintiffs suing Andrew Cuomo. That's the famous decision by Justice Gorsuch, five to four, that comes out at two o'clock in the morning saying, wait a minute, you can have 500 people in a Walmart, but you can't have 500 people in a cathedral that holds 1,500. You can have 200 people cheek by jowl in a liquor store. You can't have 200 people

in a synagogue that holds 400. So they invalidated all those closures. And even though it was a New York case, suddenly the churches in New Jersey opened up. So when my then colleague, Tucker Carlson, asked Governor Murphy about this, he made a strange face and he said, oh, the Bill of Rights, that's above my pay grade. You may remember this. What do we do about a governor who says the Bill of Rights is above my pay grade? Meaning even though he took an oath to uphold it, in his view, he doesn't have to comply with that oath anymore. Well, isn't that the sad reality of where we are? Yes.

Obediency has become far more important than the rule of law. You commented on one of your prior podcasts. You were talking about, I mean, you and I have talked about this multitude of times. Drone strikes. We launched rockets against countries that we have no declaration of war with. Nothing. Out of nowhere. Donald, listen to all the presidents today. I want to pick on Trump. Trump killed an Iranian general who was about to have lunch with a colleague in Iraq. Iraq is our ally and we're not at war with Iran. And you go back. Barack Obama did the same thing.

It turned out two of the people he killed were American citizens. They were born in the U.S. Yep. And you go back to Clinton and the aspirin factory. The idea that a president can unilaterally, without apparent due process. So presidents can kill. Yes. And Congress will look the other way.

Presidents can issue edicts like Joe Biden keeps saying he's going to do. He's on his way to Rome as we speak, but he announced a month ago he was going to order OSHA, the Occupational Safety and Health Administration in the Department of Labor, to compel

employers of 100 people or more on private property to prove they were vaccinated or take the vaccine before they could work there. Why do people look the other way? Why would employers comply with this edict when it's not a law, it's not reduced to writing, and the executive branch doesn't have the authority to do it. People refuse to step outside themselves and appreciate the practical realities of what will happen to them ultimately. This is why you and I always go back to the rule of law, due process, the appropriate legislation being passed, legislative branch, Senate, signed into law. It's gone through the appropriate process. The courts

can test it and test the boundaries of it. That is what must occur. But in a society where people expect everything immediately and right now, I want a movie, boom, it's right there. I want something delivered, boom, in like five minutes, I guess I'm going to have a drone delivered to my front door, but I'm at least going to get it in a day, maybe two. We don't have time to wait around for process. And when you couple that with the unbelievable, in my lifetime, I've never seen a type of dysfunction that exists between the Republicans and Democrats in terms of doing what's right for the country versus what is right for their political party or the ideology. That's why you have people complacent. They don't look.

He got the job done. The guy was a bad guy. He was a murderer. He's a terrorist. I don't care. They bought. You know, Brian, that's the exact thing that the former character of a congressman from Harlem, Charlie Rangel, he used to talk like this, said to me when I had my show Freedom

Watch on Fox Business Network, why did you guys look the other way? There was no declaration of war when the president bombed Libya and Qaddafi was murdered, horrifically slaughtered in the streets and basically said, Ali was a bad guy and he did the right thing anyway. Well, that's not what the Constitution requires. And the government is so accustomed to getting around the Constitution. You remember how they lowered speed limits by bribing the states. Hey, South Dakota, here's $100 million to repave all the federal highways in your state. In return, lower the speed limits to 55 miles an hour while you're at it lower the blood alcohol content acceptable before prosecution for dwi to 0.08 it's like a beer and a half in an average size uh adult south dakota said forget it we're taking the money we don't want

the strings the supreme court said you want the money you take the strings what left-wing pinko big government authoritarian president signed that into law ronald reagan exactly right so both parties are complicit in this we don't write any law they'll regulate any behavior they'll tax any event they don't care about the constitution absolutely not we got the same shaft in ohio and in fact I got grandfathered in when I was back in college in the early eighties, they changed the drinking age in Ohio to 21 for the same reason. The federal highway authority said, if you don't change your drinking age at 21 from 19 for beer, it was always, I think it was 21 for alcohol anyway, or the higher

level alcohol, then you're not going to get your federal money and we were like the governor at the time said no and then when push comes to shove and you're out all that highway funding you capitulate right that is the the the sword over which the government has control over us and it just concerns me to to know i mean an indescribable level, how much capitulation there goes on. Why not say no? So I have argued that as a formal instrument, the Constitution has succeeded. After 230 years, we still have a president, we still have a federal judiciary, we still have a Congress with a House of Representatives and as a Senate. But as a functional instrument to restrain the government, which is what Madison and Jefferson said its purpose was, establish, constitute the government and restrain it. As a functional

instrument to restrain the government, it's been an abysysmal unconditional failure. A downward spiral brought about by a failure to educate our children on fundamental constitutional principles that you and I talk about all the time, the underpinnings of our country, the success of our country predicated on freedoms and liberties. They seek to control and confine those. Now in the name of global warming or tomorrow in the name of something else, that is a huge problem with our education system because it escapes people. They don't understand these core foundations. Heck, Your Honor, you know, and it's sad to even say that a lot of people

don't even understand the division, the separation of powers concept right executive orders are great why i go back to expediency oh look donald trump got it done wave of the pen oh look you know here we are joe biden got it done wave of the pen no they didn't i'm gonna tell you a funny story and bring us back to uh religion i don't think I've told this before. So I'm having dinner with a priest friend of mine in his rectory. The doorbell rings. This is during the COVID lockdown. The doorbell rings.

There's three state troopers there. My goodness, what the heck do they want? Guess what they wanted? They wanted to go to confession. So outside of my hearing, he hears the confession of each of these three state troopers. They come in the kitchen where I am to say hello. They all knew me.

And I said, do you guys remember the first day of the police academy? The first rule you learned, which is it is unlawful to obey an unlawful order. Yeah, of course we do. Do you think we enjoy going around and keeping people from coming to church or going to a supermarket? I said, well, why don't you just stand firm? And one of them said, because none of us wants to be the first. None of us wants to be the first to deal with this. We know what we're doing is wrong. None of us wants to be a first to the governor to say, go take a hike. Well, it's fear. It's fear. Absolutely. It's fear. They all know what you've done. Internet world. We know your search history. We know where you are. We know where you shop. We know what you buy. You know, but I see, Your Honor, a what I'm going to call what appears

to me a little bit of a great awakening. It's like the network moment. Mad as hell, I'm not going to take it anymore. All right, make me happy. Let me hear this. Okay, let me start with comedian Dave Chappelle. He says what he wants. He says what he wants. He stands up against the cancel culture. He's out there still defending himself.

He is a comedian. Comedy. We're canceling comedy? I mean, remember Don Rickles? Yes. He was around today. Remember Don Rickles? Yes. He was around today. Remember Lenny Bruce? Yes.

Thank God for Lenny Bruce. And what's not out of Lenny Bruce? Freedom of speech. And we got all these great cases over the years, some of which, as you and I know, are offensive to our sensibilities in the sense of like Brandenburg, the language that's used. But what secured your and my right to speak freely now more and more people are sensing it more and more people are realizing that yeah what wait a second you just canceled that person it appears as though i may be the next and they're waking up to it look at at the independent polling right now. You and I both know independents control government at this juncture. And they have rebelled, properly so,

against this. So the soft nullification is what will help us. We saw a hard nullification last week. The state of Texas enacted an abortion law, and I don't want to get into the pro and con of abortion, but just with respect to the Constitution, which utterly defies Roe versus Wade, and the Supreme Court let that stand. Ultimately, you're going to rule on it, but they know it's 180 degrees from Roe versus Wade. It is the state of Texas nullifying Roe versus Wade, which has been upheld hundreds and hundreds of times by all levels of the federal court. And the Supreme Court said, we're going to let it stand. Man, if a state can nullify when the federal government exceeds its authority under the Constitution, as Jefferson and Madison said, to correct the feds, to power, not to Washington, but away from it.

Maybe there is light at the end of the tunnel. I sure hope so. I truly do. All right. I've got to ask you this before we go. Yeah. What the heck is going on with the Cincinnati Bengals? Why do they have more wins than the Jets and the Giants combined, Brian? I used to

torment you every Wednesday for five years over the Bengals in the fall season. I can't do it anymore. Listen, I live in the greater Cincinnati area. We are used to being tormented. This is incomprehensible to most greater Cincinnatians, Your Honor. I don't know where it's coming from. Obviously, we have a wonderful quarterback. Isn't he some kid from the backwoods of Louisiana? Right. He's like 15 years old. He looks 15. But he has an arm and accuracy,

and we have a great offensive-defensive line, and we need this. I tell you what, back to our libertarian, smaller government, limited interjection and interruption in our lives kind of thing, we in the city of Cincinnati and Hamilton County, generally speaking, have the absolute and on-record documented worst football stadium build deal on the planet we built the taxpayers built that place and we've been given nothing but defeat and loss for so long well i was in a hotel room once and i could see into the field now is the field, the Cincinnati Stadium, is it in Kentucky?

No. No, we have Great American Ballpark. It's just south of the – I was looking over a river, and there was some stadium there, and I mentioned that to Bill Hemmer, and he was laughing. Basically saying only in Cincinnati. I mean, the New York Giants and the New York Jets play in New Jersey. What they normally do when you get a screenshot, like if, for example, I'm in front of a green board doing an interview with you like on television.

Right. They'll show the city of Cincinnati, but they always show it from Kentucky. So you'll see the Paul Brown Stadium, and then you'll see Great American Ballpark, which is a great baseball stadium. Listen, the deal with the devil was made. We're still paying for it. We're going to be paying for it forever. But at least this year, so far, as I knock my Oakwood chair,

we can at least have some confidence in the team. That's about all. As much confidence as I have in you, which is a great deal, and I look forward to next Wednesday with you. Brian, it's been an utter joy that the 30 minutes or 25 minutes has gone by like that. Every time we talk, it goes by so quickly, and I always think, gosh, every week I wish I had an hour on the radio with Judge

Anapolitano. We'll find a way to do it, Brian Thomas. 55KRC Cincinnati, and we'll do this again. Thanks a million. Have a great weekend, my dear friend. Hey, check out the podcast of The judge and me every Wednesday, 830 a.m. 55KRC.com. If you want to check it out, what the judge and I talk about every week, please feel free to log on. It'd be my pleasure for you to hear it.