I just caught Fox News legal analyst Judge Andrew Napolitano peddling his book "Constitution in Exile" on the TV. Let me just say that I'm a little unimpressed with his thesis.

Napolitano complained that once the government claims power in the name of national security, it never gives it back and that each time it happens we are less free.

He then goes on to castigate President Abraham Lincoln for arresting 3,000 northerners who opposed (and spoke out against) the Civil War and FDR for interning Japanese Americans during WWII. Napolitano, correctly, argues that either of those two acts could never happen today.

Well, doesn't that just blow the government-trashes-civil-liberties-during-wartime-and-it- never-gives-them-back argument out of the water? No president since FDR has even attempted to round up U.S. citizens based only upon their ancestry. Despite his continued predictions, New York Times columnist Paul Krugman still isn't cooling his heels in Gitmo.

You can certainly argue, and I would, that the powers claimed by FDR and Lincoln were unconstitutional (or extraconstitutional), and so no subsequent presidents have, rightly, used them. However, these were powers claimed by the government -- and they've been given back.

Of course, this wouldn't be the first time that Fox News' senior legal analyst has gotten his facts wrong.