The American Police State

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The Tyranny of Good Intentions: How Prosecutors and Law Enforcement are Trampling the Constitution in the Name of Justice. Paul Craig Roberts and Lawrence M. Stratton, New York: Three Rivers Press, 2008, 264 pages (paperback), $16.95.

In the past six years, I have written a number of articles, papers, and columns about how any pretense of the rule of law in the United States is dead. This was not always the position I took, but after reading the hardback version of The Tyranny of Good Intentions in 2001, I realized that not only were the people who were officially entrusted with keeping the law in this country not interested in fulfilling their duties, but that the very nature of law itself in the USA has fundamentally changed. That change, unfortunately, has been for the worse. I wish I had more comforting words.

Paul Craig Roberts, an economist and a former assistant secretary of the Treasury during the Reagan administration, and Lawrence M. Stratton, an attorney and currently a Ph.D. candidate in Christian Ethics at Princeton Seminary, have exposed the modern U.S. legal system for the wretched lie that it has become. From the fraud of the "War on Terror" to the destruction of ancient legal doctrines, Roberts and Stratton document the death of law in the United States.

Before I go through the litany of cases and situations that Roberts and Stratton present, I first must point out that the main service they do is not the presentation of many injustices that are a regular part of U.S. law today — though what they say is important, if not downright discouraging. (I would warn all readers that they need to prepare to be angry and shocked at the many evils done today in the name of the law. If a reader has problems with high blood pressure, I would urge that person to stop right here.)

No, the most important thing that Roberts and Stratton do is to educate the reader about the source of U.S. law, how it began, and why it has become so corrupted. In this review, I will deal first with their vision of the law and the downfall of that vision, before mentioning a few cases.

While we might look back to the signing of the Magna Charta in 1215 as the beginnings of what are called the Rights of Englishmen, perhaps the most influential document in the history of our law was (I emphasize "was") William Blackstone’s Commentaries on the Laws of England, published between 1765 and 1769. As Roberts and Stratton point out, Blackstone believed that the law should be a "shield for the innocent" and that the purpose of law (and government) was protection of innocent people (and their property) from predators — and from the predatory state.

From Blackstone’s vision came the view of "innocent until proven guilty," and the protection of rights for those who were accused. From Blackstone, we are given the famous quote: "It is better that ten guilty persons escape than one innocent suffer." Indeed, the concept Rights of Englishmen has been absolutely vital to the very idea of liberty in this country.

However, there also was a competing vision, one that was drawn up by the "father" of modern government, Jeremy Bentham, a British philosopher of the late 18th and early 19th centuries, the one who penned the term, "utilitarianism." Bentham scoffed at the idea of individual rights, and believed that the state needed to be a mechanism by which the largest number of people could be able to experience the greatest pleasure with the least amount of pain.

In Bentham’s view, the state was to accomplish that purpose by being as unrestrained as possible, led by people whose vision was superior to the vision of ordinary people who did not know better. Law, in Bentham’s view, was not to be a "shield" for innocent people, but rather a set of rules that would push people in a certain direction through incentives, both benign and harsh. Even wrongful convictions of innocent people were not harmful, for they empowered the state and sent a message to everyone else.

For example, readers of this page and (one would hope) most Americans recoil at the thought of government using torture to extract confessions. While Blackstone railed against the use of the "rack" and other such torture devices, Bentham saw torture as useful for the state, to be administered by the Wise State as a mechanism to teach the subjects of a country to obey their political masters.

Another example came with the use of prisons. Bentham believed that people should be arrested and imprisoned before they committed crimes. The state would be wise enough to determine who was a threat and who was not, and those people deemed to be a threat to "society" were to be locked up and forced to engage in labor. Moreover, prisons were not to be dedicated to incarcerating dangerous and violent people; they were to be used as tool to strengthen the power of the state.

Where Blackstone believed that government should be restrained by natural law, and be a "shield" for the innocent, Bentham saw the state’s role to be a sword against people who might threaten the well-being of those in political power. In his view, there was no such thing as "natural law;" indeed, law was nothing but a set of rules put into place by those who had power.

It does not take a particularly astute person to see which vision has triumphed in the United States. Roberts and Stratton, after laying out the competing visions of law, demonstrate unequivocally just where U.S. law is headed, and the many injustices that the Benthamite vision has visited upon innocent people.

From the Drug War (and the policies of asset forfeiture — read that, seizure by government authorities of property under flimsy pretenses of guilt) to the creation of ex post facto laws to bills of attainder, they document conclusively just how prosecutors, corrupt judges, and the police have destroyed any last vestiges of natural law and constitutional rule.

For example, they deal with the ancient doctrine of mens rea, which meant that in order for a person to be charged with a crime, authorities had to show that he or she intended to commit a crime. Blackstone wrote that a "vicious will" was necessary for such charges to be made justly. Bentham thought otherwise.

Today, the U.S. Supreme Court and lawmakers have obliterated mens rea, in the process wiping out a very real protection that individuals had against the predatory state. In their chapter, "Crimes Without Intent," Roberts and Stratton outline a number of criminal cases brought in which it was clear that the defendants did not intend to break the law — or even knew they were doing so.

One very sad case involves that of Benjamin Lacy of Linden, Virginia, a 73-year-old producer of apple juice who was targeted by the Clinton administration and the Environmental Protection Agency in 1994. Lacy, who had written down a few wrong numbers on waste water forms (he received his information over the telephone) was tried and convicted in federal court for "conspiracy to mislead" the government.

Prosecutors theorized that Lacy was trying to cover up polluting a nearby stream. However, they never offered proof that the stream was ever polluted, and they were successful in convincing a judge not to permit Lacy to use evidence that no pollution had taken place as a defense. A sycophantic jury (What other kind of jury exists these days?) believed the prosecutors, and Lacy went to prison, his life ruined.

In case someone thinks Roberts and Stratton exaggerate, perhaps a line from the majority 1957 opinion in Lambert v. California, written by Justice William O. Douglas (mistakenly called a "libertarian" by many) will be enlightening: "We do not go with Blackstone in saying that u2018a vicious will’ is necessary to constitute a crime." In fact, while legal historians and others might claim that the Earl Warren Court of the 1950s and 60s expanded the rights of the accused, Roberts and Stratton demonstrate that this court accelerated a trend in which the state — and especially the bureaucracy — gained huge amounts of power against individuals.

When agents of the state are given unlimited power by legislators and judges (the Constitution be damned or turned into a mechanism by which to expand the powers of the state), then one should not be surprised when those agents lie or suborn false testimony. Throughout this book, Roberts and Stratton document — and I mean document — how the authorities themselves have become the lawless, and the examples are endless.

I must point out — if only because the critics of this review will accuse me of being overly favorable to the authors — that they mention my name in their section on the false prosecution of innocent Duke University students by the infamous Michael B. Nifong. As readers of my articles already know, Nifong indicted three Duke student-athletes for rape, kidnapping, and sexual assault despite knowing that they were innocent, but needing to bring charges in order to gain enough black votes in Durham County, North Carolina, to win an election. (The accuser was black, and the defendants were white. That was enough for the authorities and voters of Durham — and much of the Duke faculty and administration — to conclude that the charges simply had to be true, even if no evidence of a crime existed.)

While I appreciate the authors’ pointing out my very small role in exposing Nifong’s predations, I also can say that I would have written this review even had they not mentioned my name. In fact, I will say here that no book — no book — has influenced me more than their 2000 hardback version of Tyranny, and this book is an improvement over the original. If a reader wishes to understand the points from which I come as I deal with the legal abominations of the authorities of this country, this book is the best place to start.

I will go farther and say that I really did not understand the law until I read the first version of Tyranny, and that the book gave me the equivalent of a legal education. Had it not been for Roberts and Stratton, I never would have become involved in the Duke case at all, not because I would have believed Nifong, but rather because I would not have understood the real issues behind the case.

This book is not a politically-motivated polemic, as both conservatives and liberals are exposed. The modern Drug War is the creation of the Reagan and Bush I administrations, and is championed by most conservatives (and especially the Christian Right). The legacy of this "war" has been the explosion of the U.S. prison population from about 300,000 when Reagan took office in 1981, to more than two million today.

Yet, liberals also come under scrutiny. Roberts and Stratton document the massacre of innocents at the home of the Branch Davidians in Waco, Texas, which liberals championed aggressively. (I watched the 1995 U.S. Senate hearings on the affair, and Senate Democrats did everything they could to discredit the critics of Janet Reno’s Department of "Justice" which ordered the attacks.) The evisceration of mens rea accelerated during the Clinton administration and is a staple today of modern political liberalism, which seeks to criminalize normal business practices and more.

As I warned earlier, a careful reading of this book is guaranteed to raise one’s awareness — and blood pressure. I can feel mine rising as I write these words, so I will stop at this point, for the sake of my own health.

I cannot overemphasize just how important this book really is for those who care about liberty and the rule of law. This is not something which looks at modern law and makes a few recommendations, as though a few "reforms" would make a difference. No, Roberts and Stratton have attacked the modern tyrannical state root and branch and have demonstrated conclusively not only that the Bentham vision has "won" the legal battle in this country, but just how utterly destructive that "vision" really has become.

Perhaps all we can do right now is to learn, and for those who wish to better understand the foundations of liberty, this is a good place to start. A very good place.

August 11, 2008

William 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. He also is a consultant with American Economic Services.

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