The Tyranny of Good Intentions : How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice Paperback - 2008

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 castle. This protection is summed up in the common law maxim “A man’s house is his castle; even though the winds of heaven may blow through it, the King of England cannot enter it.” This legal barrier that protects the sanctity of the individual is a central achievement of English jurisprudence. It means that the sovereign himself is subject to law. According to Blackstone, “The true liberty of the subject consists not so much in the gracious behavior, as in the limited power, of the sovereign.”

Another of the Rights of Englishmen is the protection against self- incrimination. Without this right, a suspect could be put on the rack and tortured until he admits guilt. Besides the rack, other methods used to extract evidence by force included thumbscrews, legscrews, and a torture called strappado, a pulley that would hoist a person in the air by his wrists while heavy weights were attached to his feet. Blackstone was aghast at these practices that rated a “man’s virtue by the hardness of his constitution, and his guilt by the sensibility of his nerves!” The injunction against self-incrimination ended English torture by the 1640s, more than a century before its demise elsewhere in western Europe. From its inception, the injunction included the corollary protection against torturing witnesses into providing evidence against others.

At Runnymede in 1215, King John signed the Magna Carta, which set out the framework for limitations on sovereign power. The Magna Carta asserted the security of every freeman in “the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land,” as Blackstone summarized it.

These principles have had to be continuously defended against government encroachment. In the face of assertions of absolute royal prerogative during the reign of James I in the early 1600s, jurist Sir Edward Coke repeatedly appealed to the Magna Carta’s statement that the king is constrained by the “law of the land.” With the backing of Parliament, upon which the king was economically dependent, Coke, as chief justice, stood before James in Whitehall Palace in 1616 and insisted that the king could not halt the proceedings of a court case. “The stay required by your Majesty was a delay of justice and therefore contrary to law,” Coke said. Coke later wrote in his Institutes of the Laws of England that the sovereign had to govern in conformity with the “due course and process of law.” Later reduced to the two words due process, Coke’s phrase expressed the principle that the king must follow legal processes and procedures in governance and the administration of justice.

The law empowered Coke to stand up to the sovereign’s claim of divine right. James removed him as chief justice, but Coke reappeared as a member of Parliament, where he had been Speaker of the House of Commons and a champion of free speech during the reign of Elizabeth I. Back in the Commons, Coke led the fight against James’s attempts to constrain parliamentary powers:

The privileges of this House is the nurse and life of all our laws, the subject’s best inheritance. If my sovereign will not allow me my inheritance, I must fly to Magna Carta and entreat explanation of his Majesty. Magna Carta is the Charter of Liberty because it maketh freemen. When the King says he cannot allow our liberties of right, this strikes at the root.

In rage, James dissolved Parliament and had Coke arrested and sent to the Tower of London. Coke was charged with defrauding the king of funds relating to land holdings, but everyone knew that James’s adversary was the law. Eleven months later Coke was freed after he was cleared by three justices, who declared that he “neither in law nor conscience was to be charged of any thing.”

Coke returned again to Parliament and continued to defend law against encroachments by the king’s government during the reign of James’s son Charles I. Coke championed a prisoner’s right to a public trial, the writ of habeas corpus (a safeguard against illegal detention), the right of the accused against self-incrimination, and the right not to be jailed without cause. Desperate for more money than he could get from Parliament, Charles coerced loans from the upper classes, in violation of a statute dating from the fourteenth-century reign of Edward III that said, “Loans against the will of a subject are against reason and the liberty of the land.” Charles imprisoned subjects who refused his demands or impressed them into involuntary servitude in the navy. When the courts failed to release five arrested knights who protested their illegal confinement, Coke led the fight for the Petition of Right of 1628, reiterating the principles of the Magna Carta in protest of the knights’ treatment.

Due process requires that a prosecutor provide to a grand jury evidence that a crime occurred before a charge can be brought against an individual. Even before evidence is brought, the principle of prosecutorial discretion protects citizens from being targeted by those empowered to prosecute. Prosecutors have enormous discretion in choosing their cases, but the choice is constrained by the amount of available evidence and the act’s level of criminality. If there is strong evidence that nine adults committed murders, some evidence that a schoolchild stole a loaf of bread, and speculation that a banker may have violated an arcane law, the prosecutor is not permitted to first chase after the schoolchild or the banker.

"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

“Roberts and Stratton, who performed a huge service to the rights and liberties of all of us in their original edition of Tyranny, now bring their important book into the era of the War on Terror. Their original book warned us things would get worse, and, sure enough, they have.”
—Harvey Silverglate, former head of the Massachusetts ACLU

“Roberts and Stratton show that even though the War on Terror has failed to make America safer, the government’s assault on the U.S. Constitution has been a sterling success.”
—Professor Richard Moran, author of Executioner’s Current

PAUL CRAIG ROBERTS was assistant secretary of the Treasury in the Reagan administration, a university professor, and an associate editor of The Wall Street Journal. He is a nationally syndicated columnist for Creators Syndicate.

LAWRENCE M. STRATTON is a Ph.D. candidate in Christian Ethics at Princeton Theological Seminary and a former adjunct professor of Georgetown University Law Center. He is currently on the adjunct Ethics faculty of Villanova University.