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When a three-judge panel of the U.S. Fourth Circuit Court of Appeals this week dismissed lawsuits brought by former Duke Lacrosse players against the City of Durham, it repeated the fiction that governmental institutions in this country are so necessary to preserving "our way of life" that the individuals working in those institutions should not be held accountable for their conduct no matter how outrageous or illegal it might be. The institutional cover, the justices ruled, is enough to "prove" good faith in the power of the state to act in a pure and righteous manner, even if those who were wronged can demonstrate that government agents were lying.
The lawsuit stems from the false indictment of three former lacrosse players for allegedly raping Crystal Mangum, a Durham prostitute and stripper (who currently is charged with murdering a former boyfriend), at a party in March, 2006. I have written numerous articles on this case, which became famous (or infamous) on a number of fronts and ultimately was dismissed by North Carolina Attorney General Roy Cooper in April, 2007. K.C. Johnson, the college professor whose blog, Durham-in-Wonderland, has well-documented everything in that case, has commentary on the latest ruling from the justices, and it is well-worth reading.
(The justices, however, do leave intact that lawsuits filed against former Durham police officers Mark Gottlieb and Ben Himan, both of whom played up-front roles in the "investigation" and also testified to the grand juries that returned criminal indictments against three of the players, David Evans, Collin Finnerty, and Reade Seligmann. Whether or not the courts decide to protect those two scofflaws in future proceedings is another matter.)
In the past several years, I have written a number of articles and papers on the Progressive Era and its continuing legacies, and I continue with that theme in this piece. For all of the talk that our country is a Constitutional Republic, it actually has been a Progressive Democracy for more than a century, as the original U.S. Constitution today is nothing more than parchment under glass, and any contemporary legal interpretation of the Constitution is conducted through the Progressivist viewpoint. (Keep in mind that Progressivists like Woodrow Wilson and Herbert Croly openly despised the Constitution and believed that at best it should be ignored and at worst, publicly discarded.)
The Governing Paradigm of Progressivism
If we can reduce the Progressivist ethos to one line, it would be this: Experts should rule us. In legal terms, that means that judges defer to the "experts," who actually are nothing more than government employees. For example, when the Civil Rights Act of 1964 was passed, it contained language that specifically forbade racial quotas as a means to redress racial discrimination.
However, in less than a decade, the U.S. bureaucracies were imposing those forbidden quotas upon numerous institutions and businesses and the U.S. Supreme Court ruled specifically that it must "defer" to the interpretation of the law by federal bureaucracies. (Paul Craig Roberts and Lawrence Stratton in The New Color Line explain the SCOTUS rulings and how bureaucrats now write law.) This hardly was unusual, as the process began during the Progressive Era in which Congress would write laws, but bureaucracies then would write the actual rules that would be the standard by which the authorities would implement and enforce the laws. The ominous process gained speed during the New Deal, as Congress ceded much of its lawmaking power to President Franklin Roosevelt and the executive branch, and the process continues to the present time.
Like all political movements, Progressivism was backed by the secular ideology based upon the viewpoint that formal education would produce "experts" firmly grounded in science who would wisely and competently guide American society in ways that would be superior to the "chaos" created by free markets and constitutional rule of law. (Judge Andrew Napolitano has written a book, Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedoms, in which he explains how Progressivism and the institutions it spawned eviscerated historical American liberty. David Kiriazis and I have an upcoming paper in The Independent Review in which we show how Jim Crow policies and Progressivist economic regulation were tied together.)
One of the standing doctrines of Progressivism was that government agents, if they were to do their jobs properly, needed to be shielded from methods of accountability wielded by ordinary citizens. That meant that individuals who might be harmed by wrongful actions of government agents (acting "under the color of law") had limited recourse in seeking redress for the harm brought to them.
Not surprisingly, judges have been hyper-vigilant in protecting the main players in criminal courts — prosecutors and judges — from lawsuits filed for wrongful conduct, ruling that these individuals have absolute immunity when acting within the scope of their "official" duties. (The only reason that former Durham County prosecutor Michael Nifong has not been dropped from the lawsuit is that he also declared himself to be the main investigator of the criminal case against the lacrosse players, and usurped the role of the police.)
Defenders of this practice point out that prosecutors and judges can be disciplined by panels that supposedly oversee their conduct and that they also can be brought before various state bars that can strip these people of their law licenses if the conduct is egregious enough. The North Carolina State Bar, for example, took away Nifong's license because of his actions in the lacrosse case. Furthermore, supporters of this system argue, wayward prosecutors and judges can be criminally charged for misconduct.
For all of the claims that these ballyhooed "safeguards" are sufficient, in reality they are a joke, a very sick joke. Nifong's punishment was mild when compared to the outright criminal behavior on his part. Despite the huge number of cases in which prosecutorial misconduct has led to fabricated charges and even wrongful convictions, not one prosecutor in this country's history has been convicted of a crime related to such wrongful conduct. When I laid out evidence of massive misconduct by two prosecutors in the 2010 Tonya Craft case in Northwest Georgia, the representative of the Georgia State Bar curtly replied, "They were just doing their jobs." When I asked her if subornation of perjury, withholding exculpatory evidence, and lying to jurors during the trial was just "doing their jobs," she hung up the phone.
In reality, judges and prosecutors are held accountable only to panels of other government workers or, to be more specific, many of their cronies. The Progressivist notion that formally-educated "experts" would not be subject to the same base motives that mere mundanes exhibit is laughable on its face, but that farce today masquerades as a sacred legal doctrine.
The Progressive Lacrosse Ruling
When the judges in the lacrosse case recently made their rulings, they based them upon the doctrine of "sovereign immunity" which protects governmental bodies and the individuals that are employed by those bodies from lawsuits. The judges ruled that the City of Durham, being a municipal body, has sovereign immunity and should be protected as such.
However, the judges went much further than simply to restate sovereign immunity, as they also restated the Progressivist doctrine that the "experts" employed by the city were acting in good faith because, after all, they were experts. The Kafkaesque views of the judges are further exposed by their statements that the original accusations from Mangum — no matter how ridiculous and untrue they might have been — were reason enough to pursue a criminal investigation, and, the judges rules, the fact that Nifong secured criminal indictments — even though police officers lied to grand jurors — was enough to establish the "legitimacy" of the criminal charges against Evans, Finnerty, and Seligmann.
This is important, for the justices restated the Progressivist viewpoint that governmental bodies are incapable of wrongful conduct whenever they follow — even loosely — the established norms of "procedure." Thus, it did not matter if the investigation was bogus, if statements given by police officers were untrue, if police officers wrote and filed fabricated reports, and that the "lineup" in which Mangum identified her alleged attackers was rigged as long as the veneer of "procedure" was followed, which then sanctified the entire dishonest process.
Because of the underlying themes of race and class that drove the lacrosse case in the first place, the corruption of the "legal process" that was evident has been lost. The fact that officials from Durham, the Durham County DA's office, and Duke University lied early and often is obscured because of the race and class narratives. (Film maker Ken Burns recently repeated in various interviews his view that those charged in the case were hardly "innocent," and that they only were "mildly inconvenienced" by the whole affair. I will have commentary on what Burns said in a later article.)
That federal judges have chosen to protect outrageous conduct by government officials is hardly surprising, given the record of the courts and the political and legal doctrines that underlie their decisions. Once again we are told that the most important thing is that police, prosecutors, and judges need to be free to "do their jobs" and that we must be willing to put up with "collateral damage" so that the "system" can be free to protect us from the bad people.
What we are not told — and what the pundits never seem to ask — is why we should even confer legitimacy upon a system in which liars and wrongdoers receive immunity from punishment for outright criminal behavior. This is not the problem of a "second-best" set of circumstances or even the admission that human beings are fallible creatures. No, what we are seeing is tyranny in action in which those who rule over the rest of us declare that they are so pure and so holy and so necessary to our well-being that we cannot and will not hold them accountable no matter how egregious their actions might be. This is not the institution of justice; it is the institutionalization of lying, the very antithesis of justice.
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. Visit his blog.