Losing the Law

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 possible.

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 issued.)

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 are Trampling the Constitution in the Name of Justice, Roseville, California: Forum, 2000.
  2. Quoted in Roberts and Stratton, p. 15.

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. Candice Jackson [send her mail] is a graduate of Pepperdine Law School and is an attorney for the
West Coast office of Judicial Watch.

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