The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice First Edition first Printing

Roberts and Stratton say the Constitution and its basis in the historic rights of Englishmen to be secure in person and property are not merely imperiled but substantially gutted. In the twentieth century, many personal and property rights have succumbed to governmental regulations and to ambitious, unscrupulous government attorneys. The authors cite cases to show how it became possible to be guilty of a crime though lacking criminal intent; to be liable for damages that were, when committed, not damages; to forfeit assets without cause or assurance of recovery; to be coerced to plead guilty; to avoid punishment by snitching on others; and to force private attorneys to divulge confidential client information. For the sake of fighting the war on drugs, cleaning up pollution, and other initially well-meant causes, Roberts and Stratton warn, the U.S. is becoming the image of its totalitarian former enemies in its prosecution of justice--or, rather, injustice. Top-drawer public affairs argumentation. Ray Olson
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"A devastating indictment of our current system of justice and a call to arms to restore hard-earned protections of human freedom that are now routinely violated by government officials"
— Milton Friedman
"The Tyranny of Good Intentions is a bold defense of our fundamental freedoms. It demonstrates that government oppression is not a right-left issue, but rather a universal evil that should be resisted by all free people. It demonstrates why conservatives and liberals who despise tyranny must unite against statists of both the right and the left who falsely believe that partisan ends justify depravations of liberty. . . . When rights are subordinated to government power, the first steps toward tyranny are taken."
— Alan Dershowitz, author of The Genesis of Justice
"In The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence Stratton combine writing talent with their genius for legal analysis to create a much-needed firewall against the current steady erosion of the rights of U.S. citizens."
— G. Gordon Liddy
"I went to law school to understand law's role in society, but was taught instead that government lawyers should run society from on high with little need to comply with time-honored rules designed to keep them honest and accountable to the society. Roberts and Stratton reveal the roots of the problem. How strange it is that I, a law professor, learned so much about the law from a book whose lead author is an economist."
— David Schoenbrod, professor, New York Law School

A thousand years of legal protections against tyranny are being stolen right before our eyes. Under the guise of good intentions, personal liberties as old as the Magna Carta have become casualties in the wars being waged on pollution, drugs, white-collar crime, and all of the other real and imagined social ills. The result: innocent people caught up in a bureaucratic web that destroys lives and livelihoods; businesses shuttered because of victimless infractions; a justice system that values coerced pleas over the search for truth; bullying police agencies empowered to confiscate property without due process. <br><br>"A devastating indictment of our current system of justice." — Milton Friedman<br><br>In this provocative book, Paul Craig Roberts and Lawrence M. Stratton show how the law, which once shielded us from the government, has now become a powerful weapon in the hands of overzealous prosecutors and bureaucrats. Lost is the foundation upon which our freedom rest—the intricate framework of Constitutional limits that protect our property, our liberty, and our lives. Roberts and Stratton convincingly argue that this abuse of government power doesn't have ideological boundaries. Indeed, conservatives and liberals alike use prosecutors, regulators, and courts to chase after their own favorite "devils," to seek punishment over justice and expediency over freedom. The authors present harrowing accounts of people both rich and poor, of CEOs and blue-collar workers who have fallen victim to the tyranny of good intentions, who have lost possessions, careers, loved ones, and sometimes even their lives. <br><br>This book is a sobering wake-up call to reclaim that which is rightly ours—liberty protected by the rule of law.

"A devastating indictment of our current system of justice and a call to arms to restore hard-earned protections of human freedom that are now routinely violated by government officials"— Milton Friedman
"The Tyranny of Good Intentions is a bold defense of our fundamental freedoms. It demonstrates that government oppression is not a right-left issue, but rather a universal evil that should be resisted by all free people. It demonstrates why conservatives and liberals who despise tyranny must unite against statists of both the right and the left who falsely believe that partisan ends justify depravations of liberty. . . . When rights are subordinated to government power, the first steps toward tyranny are taken."— Alan Dershowitz, author of The Genesis of Justice
"In The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence Stratton combine writing talent with their genius for legal analysis to create a much-needed firewall against the current steady erosion of the rights of U.S. citizens."— G. Gordon Liddy
"I went to law school to understand law's role in society, but was taught instead that government lawyers should run society from on high with little need to comply with time-honored rules designed to keep them honest and accountable to the society. Roberts and Stratton reveal the roots of the problem. How strange it is that I, a law professor, learned so much about the law from a book whose lead author is an economist."— David Schoenbrod, professor, New York Law School

Paul Craig Roberts is the John M. Olin Fellow at the Institute for Political Economy, Research Fellow at the Independent Institute, and Senior Research Fellow at the Hoover Institution at Stanford University. A former government official and a former editor and columnist for the Wall Street Journal, he is a nationally syndicated newspaper columnist and a columnist for Investor's Business Daily.
Lawrence M. Stratton is the Robert Krieble Fellow at the Institute for Political Economy and a member of the bar in Virginia and the District of Columbia. He has taught law at Georgetown University.

chapter one

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THE LAW AS SHIELD:

THE RIGHTS OF ENGLISHMEN

Four years into the “devil’s decade” of the 1930s, a period of high unemployment, a series of articles in the London Times on depressed regions within England pierced the British conscience. Among the “Places without a Future” were the once prosperous coal fields of Durham in northeast England, which had a 37 percent unemployment rate.

County Durham wasn’t a pretty picture. Herbert Pike Pease Daryngton, a member of the British House of Lords, wrote a letter to the Times saying that “your articles on ‘Desolate Durham’ are moving beyond words.” Indeed they were. The coal pits, which had supported densely populated villages in which miners lived with their families in small row houses, were closed, leaving the inhabitants of entire precincts unemployed. A miner’s weekly dole payment was the only thing standing between his family and starvation.

Economic life is always uncertain. At various times, stock market crashes and speculative busts have wiped out the rich, droughts and floods have ruined farmers, and when government mismanages monetary policy or technology makes an industry obsolete, the hardships for ordinary people can be extreme. Sometimes the hardships of famine are combined with the hardships of lawlessness, as in Somalia in 1992, a situation so bad that it prompted an American intervention from half a world away. But in 1934 the unemployed Durham coal miners, Lancashire textile mill workers, and Jarrow shipyard workers who marched on London were totally secure in law.

The legal security that the poor share with the wealthy is based on a set of principles known as the Rights of Englishmen. These rights serve as armor against capricious arrest, confiscation of property, and deprivation of life, limb, and liberty, and they protect every “Englishman” against predatory actions of government. The rights flow from a unique conception of law, but they were not handed down from above as natural law carved in stone. Rather, they are human achievements, fought for by those who believed in them.

Readers influenced by Marxist historians or immersed in the class warfare rhetoric of American politics may find it startling that the rich and the poor have the same legal rights. It is true that a person with more money can purchase better legal services than a person with less money, just as a person with more money can purchase more expensive clothes, housing, medical care, transportation, food, entertainment, and education for his children. The beauty of the English legal tradition lies in the elimination of legal, not economic, differences. Equality under law was achieved by eliminating class- or status-based legal rights. The laws apply equally to everyone regardless of income, wealth, or position.

The Rights of Englishmen are the product of a long struggle to establish the people’s sovereignty over the law. The struggle began in England during the ninth century, when King Alfred the Great codified the common law. It moved forward with the Magna Carta in 1215, and culminated with the Glorious Revolution at the end of the seventeenth century. The idea that law flows from the people to whom it is accountable, and not from an unaccountable government, was the guiding vision of the Founding Fathers of the United States. The Rights of Englishmen define the meaning of justice. The military, economic, scientific, and technological superiority of Great Britain and the United States helped to elevate the English concept of law above all others and to associate it everywhere with self-determination.

In the twentieth century writers influenced by Karl Marx have explained away this achievement. The law, they have explained, is merely an expression of the material interest of the ruling or capitalist class. Nikolai I. Bukharin, a lord of the new Soviet state and an expositor of this doctrine, soon after the 1934 march of the unemployed on London was to experience for himself the consequences of the brutal legal philosophy that he helped formulate (see chapter 2).

Historians have argued for decades about the reasons that this unique legal system was founded in England and carried to her colonies. But all agree that Englishmen have inherited a system of law that is predicated on respect for the individual and in which human dignity and freedom have flourished. In the rest of Europe, the operating legal assumption is that the “command of the King has the force of law,” as Roman emperor Justinian’s Corpus Juris Civilis stated. In contrast, the English legal system is conceived from the principle that law flows from the people. Rather than residing in the will of the sovereign, law reposes in the bosoms of the people.

As a distant province at the outer frontier of the Roman Empire, the British Isles only partly absorbed Roman culture. When in a.d. 425 Roman legions withdrew from Britain to defend the Eternal City, little of Rome remained. In the fifth century, the Angles, the Saxons, and the Jutes brought their own perspectives on law.

Victorian historian William Stubbs’s Constitutional History of England traced the roots of the Rights of Englishmen to the community attitudes described in Roman historian Tacitus’s first-century dispatch Germania. “Affairs of smaller moment the chiefs determine,” Tacitus wrote in a key passage, but “about matters of higher consequence the whole nation deliberates.”

Leaders of primitive German communities could rule only in accordance with ancient or “kindred” values. When an important issue faced the community, “the King or Chief is heard, as are others, each according to his precedence in age, or in nobility, or in warlike renown, or in eloquence; and the influence of every speaker proceeds rather from his ability to persuade than from any authority to command.” With murmurs conveying displeasure, the brandishing of javelins reflecting favor, and “the most honorable manner” of signifying assent to various propositions through “applause by the sound of their arms,” the community—the folk—expresses its will and the leaders carry out its wishes.

By the first century Rome’s own republic had given way to the Caesars, and Tacitus has been accused of romanticizing the Germanic tribes who were pressing against Rome’s frontiers. Nevertheless, Tacitus is an example of a civilized Roman who found much to admire in the accountability of Germanic law. When quarrels arose between members of a community, or when a person was charged with committing a forbidden act, “he was allowed to clear himself by producing twelve of his equals who were to swear with him that he was innocent.” This reflected the assumption that the entire community, represented by the sworn men, and not a single judge, would determine whether an infraction occurred.

Stubbs postulated that the mighty oak of English liberties grew from this acorn planted in English soil by Germanic invaders. His thesis still commands respect. According to The Western Experience: Antiquity to the Middle Ages, published in 1974, “The connection between the later juries and parliaments and these barbarian traditions is admittedly distant, but certainly exists.” Whatever their origins and complexity of development, the Rights of Englishmen stipulate a legal system that constrains the state and prevents law from being used as a weapon against the people. This is what it means to be secure in the law.

The economic depression that plagued England during the 1930s caused millions to lead economically insecure lives, but no Englishman could be hauled out of his house to a dungeon, put on the rack, and tortured until he incriminated himself. Between each Englishman and the government stand a few basic legal principles that prevent the government’s use of the law as a weapon for oppression.

The most essential protection is the precept that there can be no crime without intent. This foundation of a just legal system is based on the presumption that people have a moral compass that allows them a choice between violating the law and obeying it. To make it easier to ensnare people, Caligula, the Roman tyrant, wrote his laws in small print and posted them on high pillars to prevent ordinary people from knowing the law. In contrast, basing crime on the accused’s intent guards individual liberty by ensuring that people cannot be convicted for offenses that they did not intend to commit. As eighteenth-century jurist William Blackstone wrote in his Commentaries on the Laws of England, “An unwarrantable act without a vicious will is no crime at all.”

The “vicious will” precondition for crimes, also known as scienter (“knowingly”) and mens rea (“a guilty mind”), has broad implications. In order for a person to violate a law knowingly, he must know that the conduct is illegal. If the law is continuously changing or so vague that people have to guess at its meaning, a person cannot knowingly violate it. To be just, law must be certain. Moreover, unless law is certain, it cannot fulfill its purpose of commanding what is right and prohibiting what is wrong.

The requirement of intent rules out ex post facto (“after the fact”) laws. One cannot have a “vicious will” to engage in conduct that was legal at the time the act took place. Noting that it is “cruel and unjust” to punish someone for having in the past done something that is only retroactively illegal, Blackstone stated the principle that “all laws must therefore be made to commence in futuro”—in the future.

To prevent arbitrary arrests, a warrant showing “probable cause” must be signed by a magistrate. The requirement of a warrant for an arrest protects the humble abode the way a moat and strong wall protect a ca...