Losing the Law

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When one of us was
recently negotiating the streets of Cumberland, Maryland, after
a two-foot snowfall had turned the roads into a
venue for street skiing, a man shoveling his sidewalk growled, "Better
be careful. If you block anyone’s way, you can be arrested." Since
the governor had declared a "state of emergency," which
is the state’s weak version of martial law, it was not an idle
threat. People driving on the roads without "official" permission
were subject to arrest and fines of up to $1,000.

Maryland, as we have
found, is a political entity that seems to revel in the "modern" view of the law as we know it today,
and this state, though farther along than most, is hardly alone.
For that matter, the federal government is leading the way for
this "new" interpretation of law, which for all its ostensible
sophistication is little more than an attempt to return the United
States to the systems of rules created by tyrants. As Paul Craig
Roberts and Lawrence M. Stratton have so eloquently written in
their book The
Tyranny of Good Intentions
, it took hundreds
of years for individuals to gain freedom under the "Rights
of Englishmen," yet it has taken only about a half century
to destroy the foundations of a legal system that originally was
created to protect the natural rights of people.1

It is difficult to
know where to start as we begin our long task of dealing with
the entanglement of modern law and jurisprudence
in the United States. Both of us for many years have watched as
individual rights and liberties have been stripped away — always
in the name of justice, of course. The two of us have decided to
combine our research into a long-term agenda in which we examine
the state of law in this country and how it is surely strangling
us of our liberties.

Yes, there is a veneer
of freedom in the U.S. Individuals can protest against the George
W. Bush Administration’s plans to invade
Iraq by marching in large demonstrations, but even in that act,
we often discover treachery on all sides. First, there is no doubt
that undercover agents from the Federal Bureau of Investigation
and the Central Intelligence Agency walked about in the crowds,
quietly gleaning any information that might be used against organizers
and participants.

Second, while we might
laud those who believe the U.S. has no business going to war
against nations that have not been at war
with us, we also note sadly that most likely the majority of participants
in those marches have no trouble with the state warring against
the citizens of this country. These are harsh words, but there
can be no other way to describe how U.S. law actually works, and
people of all political persuasions uncritically support not only
the laws but also the "legal" system that makes them

Roberts and Stratton write that law in its most noble form, as
championed by the great 18th Century jurist William
Blackstone, serves as a shield to protect people not only from
predation from others, but also from a predatory state. Under the "Rights
of Englishman," the statement "a man’s home is his castle" meant
that no one could enter without his permission. (Yes, agents of
the state could enter with a warrant, but the procedures agents
needed to follow were strict and by no means were warrants automatically

Today, the word "rights" evokes cries for more and more
government-forced transfers of wealth — as in our "right" to
work, "right" to health care, or "right" to
smoke-free sidewalks. The concept of individual liberty from arbitrary,
oppressive government actions has been replaced by the notion of
individual and group "rights" to government handouts.
To support the growing demand for a welfare-warfare state, the
legal system has accommodatingly eroded from protector to persecutor
of liberty.

Today, there can be
no doubt that modern law is a complex set of rules that can easily
ensnare anyone unlucky enough to run afoul
of them — even if there is no intent to break the law, no intent
to inflict any harm, and no actual harm results. From the "derivative
crimes" such as conspiracy and mail fraud, not to mention
the notorious "Three Strikes" laws, to the liberal asset
forfeiture laws that have accompanied the Racketeer Influenced
and Corrupt Organizations Act (RICO), to the War on Drugs, it has
become clear to anyone willing to see it that the law today is
a device through which the state intimidates and harasses ordinary
citizens. While pundits and politicians like to speak of people
evading justice because of "legal technicalities," in
truth, many more people are sent to prison today because of "technical
violations" of laws they most likely did not understand and
certainly had no intention of breaking.

Prosecutors, both state and federal, have eviscerated the once-essential
element of mens rea, or "guilty mind," that Blackstone
said was vital to understanding whether or not to commission prosecution
of crime, and it has all been neatly approved by the courts. Just
six decades ago, U.S. Attorney General Robert Jackson, later to
become a U.S. Supreme Court Justice, wrote:

With the law books filled with a great assortment of crimes, a
prosecutor stands a fair chance of finding at least a technical
violation of some act on the part of almost anyone. In such a case,
it is not a question of discovering the commission of a crime and
then looking for the man who has committed it, it is a question
of picking the man and then searching the law books, or putting
investigators to work to pin some offense on him. . . . It is here
that law enforcement becomes personal, and the real crime becomes
that of being unpopular with the predominant or governing group,
being attached to the wrong political views, or being personally
obnoxious to, or in the way of, the prosecutor himself.2

That is precisely the situation we face today. While the protesters
rightly condemned the prospect of yet another U.S. war, we doubt
that many of them believe Rudy Guiliani and the courts put Michael
Milken through a grave injustice, railroading an innocent man into
prison. Milken was rich and made his money putting together huge
financial deals; such people receive little sympathy. Yet, in many
ways, when the U.S. Government successfully locked Milken away
in prison, it committed an act of war against a citizen who did
not deserve what he received. One cannot expect a government that
can run roughshod over the rights of individuals in this country
to respect the rights of Iraqis and Afghanis.

If the incarceration of Michael Milken were the only legal injustice
perpetrated by our government, that would be one thing. However,
the greater tragedy was that a very wealthy man pled guilty not
because he had committed any crimes, but rather because he realized
that he could not receive a fair trial in federal court. The crimes
that Guiliani and his legal staff had charged against Milken were
complex with ominous sounding names like conspiracy and fraud,
yet they contained almost nothing in substance and in an earlier
legal era would never have been filed in the first place.

The point here is that if a wealthy man who can purchase whatever
legal help he wants cannot receive a fair trial, then it is certain
that if the state wishes to convict anyone else of something, there
is almost nothing that can be done to stop the process. Yes, O.J.
Simpson was acquitted by a jury in a questionable verdict, but
for every O.J. who manages to successfully have his day in court,
there are thousands of Americans who have no chance at all.

Roberts and Stratton
carefully outline the process that brought us to this point,
from the slow centralization of government that
began with the Civil War, through the Progressive Era that culminated
in World War I and the Great Depression. It was then that the ominous
process began in which Congress readily turned over its legislative
powers to a federal bureaucracy that has spawned thousands of laws
and regulations that have ensnared people left and right. Like
Esau giving up his birthright and blessing to his brother Jacob
for a bowl of stew, those who were trusted by the founders of the
U.S. to protect the rights of individuals have gladly given up
that duty — and privilege — and have vested those things in the
hands of the executive branches and the courts, both of which have
successfully teamed up to strip Americans of their liberties, one
by one.

As we pursue this research
agenda, we do so knowing, like Ludwig von Mises once said of
himself, that we are acting as "historians
of decline." There is little left of that once-magnificent
U.S. Constitution and Blackstone’s "Rights of Englishmen." What
has replaced them is an authoritarian state that has substituted
rules for law. Like the murderous Roman tyrant Caligula who wrote
his laws in small print and had them nailed on posts high so high
that no one could read them, governments at all levels in this
country are spewing out rules, regulations, and laws that few can
comprehend and no one can know in full.

That being said, we believe our agenda is a worthy one. Liberty
is a precious thing, and law in its proper place and function can
protect those natural liberties that already are ours. As long
as individuals can openly proclaim those liberties, perhaps all
is not lost. At least not yet.


  1. Roberts, Paul Craig and Lawrence M. Stratton, The
    Tyranny of Good Intentions: How Prosecutors and Bureaucrats
    Trampling the Constitution in the Name of Justice
    , Roseville, California:
    Forum, 2000.
  2. Quoted
    in Roberts and Stratton, p. 15.

L. Anderson, Ph.D. [send
him mail
], teaches economics at Frostburg State University
in Maryland, and is an adjunct scholar of the Ludwig
von Mises Institute
. Candice
Jackson [send her mail] is a graduate of Pepperdine Law
School and is an attorney for the
West Coast office of Judicial Watch.

William Anderson Archives


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