A Nation of Rules

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Edward Lamar Young knew he should not be committing crimes of burglary, especially after he already had served time in Tennessee prison more than 15 years earlier for the same thing. He had promised to “go straight” after his 1996 release and pretty much had done so until 2011, when he “fell off the wagon” and stole some items from cars and a business warehouse.

However, he sits in federal prison for 15 years and never was prosecuted for burglary. Why? He had some shotgun shells in his possession (he did not have a shotgun in which to use them) and according to federal law, a person with any criminal conviction cannot own either firearms or ammunition.

When the Chattanooga Times-Free Press publicized that situation, the response from its “law-abiding” readers was pretty straightforward: Young broke the rules and now he has to pay. The ferocity of the law itself, the mandatory 15-year sentence, or the fact that federal authorities were using what amounts to legal technicalities to circumvent Tennessee state law was irrelevant to the readers. Rules are rules.

For more than a decade, I have written on issues involving federal criminal law and police brutality, and the two really do go hand-in-hand. While Young admits that he did wrong and was willing to serve the time for burglary, an ambitious federal prosecutor, Chris Poole, decided that what really was needed was for Young to be separated from his wife and four children for a decade-and-a-half over a legal technicality. After all, Young never had been cited for violence against another person and not even Poole would say that Young imposed a danger to society of shooting others.

No, Poole acted brutally because, well, he could act brutally. And the public thinks it is fine because Young “broke the rules.” When I posted my disgust with the case on Facebook, someone else posted, “What about the burglary?” In other words, since he committed burglary, the federal prosecution was justified, and his words pretty much echoed what other Chattanoogans wrote in comments sections. To them, having shotgun shells in one’s possession and committing burglary were one and the same.

This point hardly is insignificant and it points to a most important development that has taken place in this country in the century since the ongoing Progressive Era began, and that development can be put into this one sentence: The United States, once a “nation of laws,” has become a “nation of rules.” More specifically, Americans increasingly are governed by rules set by legislative bodies, rules that are based upon arbitrary numbers and rules that often reflect knee-jerk reactions to something that has happened, and rules that often carry draconian penalties when they are violated.

Laws vs. Rules

Americans from ordinary citizens to politicians to lawyers and judges have come to assume that laws and rules are one and the same. When a state legislature declares that anyone riding in a car must be wearing a seat belt or that a restaurant cannot allow individuals to smoke tobacco products on their premises, such declarations carry the same weight as a law against one person indiscriminately taking the life of another, or someone entering another person’s property without the owner’s permission and taking goods from that person’s home. In the state where I now live (Maryland), signs on the highway remind motorists that a blood-alcohol limit of 0.8 percent is the threshold for “driving while intoxicated” or that drivers cannot use hand-held cellphones while driving constitute “the law.”

Yes, the Maryland legislature has declared such things and the governor of the state dutifully signed the bills, which officially makes them “laws,” but they are not laws in the larger tradition of natural law or a universal understanding of what law really is. For example, going back to the Young case, everyone – including Young – recognized that burglary (stealing) is wrong. No one (again, including Young) is defending his actions in taking something that did not belong to him.

Had Young been charged, tried, convicted, and sentenced to prison for burglary, no one would have objected and there would be no accusations of injustice. Even Young and his family agreed with that point. Instead, we see him going to prison for more than a decade because of an arbitrary rule imposed by Congress, which used language in the “law” that was designed to get around the very prohibitions the authors of the U.S. Constitution had imposed upon Congress to create these kinds of “laws.”

What do I mean?

For the most part, federal criminal laws do not prohibit or lay out punishments for acts which historically have been considered to be crimes. Federal murder statutes, for example, do not cover everyone as do state laws. (Lee Harvey Oswald was charged with murder under Texas law. After that event, Congress declared that killing the president would be a federal crime.) Furthermore, even those laws require certain circumstances to be present with their wording being required (in most situations) to show the illegal act had something to do with “interstate commerce,” as Congress literally has to use manipulative language in order to sneak around the Constitutional prohibitions on the federal government usurping authority given to the states.

Federal criminal law often is invoked when someone runs afoul of a federal regulation which tends to be arbitrary in itself. For example, when the feds indicted and tried attorney Johnny Gaskins for “structuring,” everyone at the trial agreed that Gaskins had obtained his money legally, but simply did not want to have to fill out all of the government paperwork that was required if he made bank deposits of $10,000 or more at one time.

(Gaskins’ clients often paid him in cash, earnings he dutifully reported to the IRS, and paying taxes on his income. He earned the money as legal payment for services and kept the cash in a safe in his house. However, he became apprehensive about being robbed and decided to put the money in a bank.)

As I noted in my column about the Gaskins conviction four years ago, Gaskins got in trouble for essentially violating a rule based upon arbitrary numbers. The only reason that the government has tried to criminalize depositing money in banks is supposedly to make things harder for drug dealers who operate with cash and who make large sums of money at a time.

There is, however, nothing inherently criminal about depositing money in the bank, yet federal rules-based law managed to turn a law-abiding citizen into a criminal because he didn’t want to do a lot of paperwork. This is not law in any meaningful sense of the word; it is rules. Americans, however, do not seem to be able to see the difference between the two.

As I pointed out earlier, the commenters in Chattanooga seemed to believe that there was no moral or even legal difference between someone having shotgun shells in the house (without an accompanying shotgun) and breaking into someone’s home and stealing things. Yet, the difference is huge. Burglary always has been judged a crime, and that view has held forth since ancient times.

Having shotgun shells in one’s possession, however, is recent and it goes back to rules and laws passed by Congress in order to harass gun owners and to reduce the pool of people who legally can have guns. This is not because Americans have become increasingly violent or are more likely than ever to shoot each other, but because the Political Classes deem it wrong for individuals who are not government “law-enforcement” agents to have guns in their possession. Thus, Congress passes laws that increase criminal liability but are aimed not at punishing wrongdoers or even improving public safety, but rather just to make a political statement of who is boss – and who is not.

The rules-based of bureaucratic nature of modern American law can be understood as the movement of law from the ancient doctrine of malum in se (acts understood by everyone as being bad in themselves, such as theft and murder) to the modern Progressive doctrine of malum prohibitum (it is bad because the government says it is bad). Attorney Paul Rosenzweig describes this migration of law:

To … fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent times the reach of the criminal law has been expanded so that it now addresses conduct that is wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum prohibitum) — that is, a wrong created by a legislative body to serve some perceived public good. These essentially regulatory crimes have come to be known as “public welfare” offenses.

Thus, today the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent. And many statutes punish those whose acts are wrongful only by virtue of legislative determination.

In other words, a governing body sets rules that ostensibly serve what the Political Classes say is good for the “public welfare,” and then these rules are enforced by the State. Lest one think I overstate the problem, the following statistic starkly proves my point: More than half of America’s two million prisoners are incarcerated because they allegedly violated drug laws. Every drug which these people either ingested or traded at one time or another in U.S. History has been legal.

To make matters worse, many of the “public welfare” laws are enforced with the utmost brutality, as governments from the local sheriff to the various bureaucracies of Washington, D.C., carry out about 70,000 raids a year using paramilitary SWAT teams which by definition use the most violent tactics available to American law enforcers. In his newly-released book, The Rise of the Warrior Cop, Radley Balko specifically cites 50 instances where innocent people were killed because cops thought a child was holding a gun or the police attacked people only to find they were at the wrong address. The number one target of violent SWAT raids: drug users.

I will put things starkly: governments consider “public welfare” laws to be more important than the laws that were crafted around those acts that nearly every society throughout history deemed to be criminal, and the scope and brutality of how those “public welfare” laws are enforced proves my point. That these things are widely accepted in the USA without much dissent is sad proof that most Americans have come to accept and even embrace this new and monstrous legal regime.

The implications of this shift of thinking are deep and wide. Societies in which people are obsessed with keeping rules (and punishing rule breakers) are not societies in which entrepreneurship can flourish. Entrepreneurs, by definition, tend to break the unspoken rules by challenging the economic status quo. A society governed by draconian rules cannot be a free society, nor can it be an innovative society, as those whose heads begin to stick above the crowd surely will find themselves in the crosshairs of the Political Classes.

Take the fate of Michael Milken, for example. This is a man who helped to fund some of the most important entrepreneurial ventures of the 20th Century and whose business acumen enabled entrepreneurs who otherwise would not have received financing from the bureaucratic and heavily-regulated financial establishment for their innovations. Not surprisingly, his own financial empire was destroyed because U.S. Attorney Rudy Giuliani alleged Milken was “breaking rules” and managed to try Milken in the media, thus depriving Milken of justice.

(In order to whip up the media hatefest, Giuliani regularly spewed his disinformation through the establishment newspapers, the New York Times and the Wall Street Journal, which were quite happy to help enable Giuliani to commit real felonies of illegally leaking grand jury information while simultaneously claiming to be “watchdogs” of government abuses. The irony – or naked hypocrisy, to be honest – could not be greater.)

With rules come procedures, and Americans today are being boiling in a cauldron of petty rules and bureaucracy. However, like the frog who permits himself to be boiled alive because the water temperatures around him change too slowly for him to notice he is in danger, so are Americans being boiled alive in the rules created by the Political Classes. The end result is ugly, but Americans seem not to notice because they are too busy trying to figure out how to obey the rules.

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