January 3rd, 2010

The Criminalization of the Citizenry

photo credit: PhotoNaturally

The centralization of power at the apex of the political pyramid requires placing other individuals at a lower level. This is done through the force of government and the imposition of laws, taxes, and regulations that turn otherwise sovereign and innocent individuals into a branded and targeted group of criminal citizens to be persecuted, fined, jailed, or otherwise punished.

In Atlas Shrugged, this pattern emerges when the imploding government is scrambling for resources to consume and redistribute. An array of new laws are passed whose primary (but unstated) goal is to artificially manufacture a scenario by which the government can legally acquire what it wants. At the conclusion of a showdown between a government agent and an individual who has become targeted by one such law, the government official openly explains the purpose behind such laws:

Did you really think that we want those laws to be observed? We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against–then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted–and you create a nation of law-breakers – and then you cash in on guilt. (Atlas Shrugged, p. 404)

As with other elements of Rand’s magnum opus, this one has its parallels with reality.

As one example of far too many, consider the case of one Honduran and three American businessmen sentenced in federal court to eight years in prison for importing lobster tails from Honduras instead of cardboard boxes. Under the Lacey Act, which makes it a crime to import “fish or wildlife taken … in violation of any foreign law”, the individuals were ultimately prosecuted and convicted for being in violation of an obscure Honduran law, since the tails of 3% of the shipped lobsters happened to be less than 5.5 inches in length.

Notably, Honduran government officials objected to this interpretation of their law and filed a brief on behalf of the defendants, but federal judges went ahead and convicted their own countrymen for this alleged atrocity. Imagine yourself a new fisherman, working hard each day to bring in a good catch and then make a profit at the market. Now consider the exhausting regulatory burdens that determine which of the actions you might pursue are deemed illegal. Frozen in uncertainty as to what laws you might be breaking, you’re likely to have to spend a great deal of time and energy to navigate the murky waters of such oppressive legislation.

An article from July of last year further details this state of affairs:

Federal law in particular now criminalizes entire categories of activities that the average person would never dream would land him in prison. This is an inevitable result of the fact that the criminal law is no longer restricted to punishing inherently wrongful conduct — such as murder, rape, robbery, and the like.

Moreover, under these new laws, the government can often secure a conviction without having to prove that the person accused even intended to commit a bad act, historically a protection against wrongful conviction.

Laws like this are dangerous in the hands of social engineers and ambitious lawmakers — not to mention overzealous prosecutors — bent on using government’s greatest civilian power to punish any activity they dislike. So many thousands of criminal offenses are now in federal law that a prominent federal appeals court judge titled his recent essay on this overcriminalization problem, “You’re (Probably) a Federal Criminal.”

State legislatures alone enacted over 40,000 new laws in the 2009 legislative session. Compounded year over year, the maze of laws become unintelligible, contradictory, and like the Bible long ago, only able to be read and understood by an elite few. Still, the states have a heavyweight rival in the other corner, that being the United States Code which contains approximately 40 million words.

This means that you, unknowingly, are likely an unsuspecting criminal who can, at the whim of any governmental authority, be prosecuted and punished for your ignorance regarding the tens of millions of words that hang over you. We were warned of such an occurrence by James Madison in Federalist 62:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?

A country that criminalizes innocuous behavior and imprisons the innocent has no business spreading democracy in any part of the world. Such a country must pluck the beam from its own eye before considering the mote in another’s. Good laws are those which are short, focused, and necessary—a far cry from our current library’s worth of ever-changing law.

Like a dying, diseased field of grain, the many excessive, invasive laws in our country should be burned away so that we can start fresh. The liberty and prosperity of each citizen would instantly increase upon doing so, and our government would be aligning itself more closely with its proper size and role—not the apex of a societal pyramid, but a necessary and beneficial partner in the preservation of each citizen’s life, liberty, and property.

15 Responses to “The Criminalization of the Citizenry”

  1. Jim Davis
    January 3, 2010 at 10:24 pm #

    The first time I read the Bill of Rights I was surprised to see that the majority of the amendments were designed to protect criminals. The more I learn from history and experience the more I realize the wisdom in these protections. It isn’t necessarily that the Bill of Rights was written to protect a criminal from any sort of consequence but it was wisely written to protect the individual from the criminalization of the government.

    We would be wise to lighten our legislative burdens at all level of governments starting with our respective local and state governments. For example, it’s illegal in the state of Utah to catch rain water. There are many other pitiful laws (if you can rightfully call them so) that have to go.

  2. Marc
    January 4, 2010 at 12:22 am #

    In Alabama it is against the law to play dominoes on sunday, to carry an ice cream cone in your pocket, and to flick boogers into the wind!

    Is this nation insane or what?

  3. a concerned mommy
    January 4, 2010 at 12:28 am #

    Great post!!

  4. Edward
    January 4, 2010 at 1:15 am #

    Great post Connor and a topic that has been on my mind a lot in the last year. I thought that I was dealing with a lot of undue laws and regulations just because of the business I am in. But I’m realizing more and more that the self-employed, small business entrepreneurs are perhaps targeted more than others–especially compared to large businesses and corporations.

    I am a farm enthusiast and I’m wanting very much to turn this summer-time hobby into something that sustains itself financially. Selling produce is fairly straight-forward but if I try to do anything with that produce and sell it as value added I face an onslaught of regulations. You legally cannot bake a pie and sell it to your neighbor without permits and a state-inspected kitchen. As soon as I cut into a tomato it becomes a “potentially hazardous substance” according to the health department and once again requires all sort of permission from government overseers. While I understand the need for safety standards, the large produce and processed food corporations ARE subject to these standards and still we have occasional outbreaks of pathogens leading to food poisoning.

    Any time there is another outbreak of salmonella in whatever foodstuff processing plant there is a call for increased regulation. For large corporate processing plants such increased regulation is a minor adjustment in terms of operation and finance. However for any small producer it often means that proving compliance to regulation is either far to cost prohibitive or simply not possible.

    I also sell free-range chickens processed on-farm using a bit of a regulatory loophole. However to sell these chickens in a store would require paying an inspector to be there for the entire process–and this in addition to providing said inspector with his/her own bathroom facility. That’s right, it is actually required that the inspector have their very own bathroom in the processing facility. For my size of operation that is simply impossible. But no matter what kind of reputation I am able to build for the quality and safety of what I sale, facilities that generate huge quantity are the only ones that can keep up with the regulations.

    Bottom line is that most of these laws and regulations certainly do infringe on Liberty. What kind of country do we live in when someone trying to make ends meet can not legally bake food to sell to neighbors?

  5. Clumpy
    January 4, 2010 at 1:57 am #

    The first time I read the Bill of Rights I was surprised to see that the majority of the amendments were designed to protect criminals.

    Even more profoundly, they’re written with an understanding that seems to have influenced the wonderful “innocent until proven guilty” idea within our society. For that stripe of political thought which tends to marginalize accused petty criminals and all-but presumes them guilty (and thus worthy of any abuse or oppression even before their guilt is proven), this is a sobering thought.

  6. JoeSwiss
    January 4, 2010 at 7:42 am #

    Assuming we’ve all been “hitting the books” lately to review what the purpose, powers and limits of government are, I think a lot of the things we’re reacquainting ourselves with now about federal power (enumerated, limited powers, 9th and 10th Amendments, nullification, etc.), can also be applied to state power.

    What set of powers did the sovereign people of Utah grant to that state? (memo to self: read state C.). Are the examples given above of onerous state laws and regulations based on legitimate grants of power? (Hamilton, F33: “The propriety of a law in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” — apply this same logic to state power).

    If not, then start nullifying at the community level. Just start refusing to recognize the state’s illegitimate usurpations.

    The whole Augean stable of government power needs to be cleaned out from top to bottom. I’m just feeling meaner and nastier with every passing day to start doing this, and I think a lot of others are too.

    It’s patriots and pitchforks time. Our elected officials, state and federal, need a “come to Jesus” reckoning.

  7. loquaciousmomma
    January 4, 2010 at 8:19 am #

    Nice post Connor!

    Professor James Duane agrees with you on this.

    As does officer George Bruch.

    These are excellent talks (although a bit long), and I think contain very important advice for us to follow for our own protection.

    I say we demand a full review of the US Code to ferret out redundancies and unnecessary laws.
    (I know, I need a reality check.)

    Much of the problem is in the public perception of the need to have the legal system address every societal ill.

    For example, take the recent trend to make texting while driving illegal. Most people are smart enough to figure out on their own that doing so is extremely dangerous. And yet, the public perception is that if it is not illegal then it is seen as being condoned, and therefore okay. So, in an effort to “send a message” states are adding yet another law to the books. In our state, one of the counties has passed an ordinance outlawing it, hoping to “put pressure” on the state legislature to pass a state law. Isn’t this type of behavior covered under reckless driving laws? Isn’t it reckless to drive a car while doing something that requires you to take your eyes off of the road for extended periods of time?

    Another pet peeve of mine is “hate crimes” legislation. Assault is already illegal, so is harassment. It is redundant to have a separate law to address different types of harassment or assault.

    In any event, I say follow the advice of Prof. Duane and Officer Bruch, and don’t EVER talk to the police without an attorney present.

    And one more thing….

    We need to outlaw my least favorite Americanism to date, which is:

    There ought to be a law…


  8. Jake
    January 4, 2010 at 7:19 pm #

    Great post!

    I like the principle. I am curious how exactly you would suggest that “Like a dying, diseased field of grain, the many excessive, invasive laws in our country should be burned away so that we can start fresh.” Should all government be redone? Should the constitution and the states’ constitution be left alone? Should the laws just be simplified? What would it take to make that sort of change in the next decade?

    It seems like a great idea, but there doesn’t seem to be a simple method in order to implement it.

  9. Clumpy
    January 5, 2010 at 12:33 pm #

    Seems like a game of pick-up-sticks. It’s almost impossible to remove most laws as they prop up other laws, or to remove groups of laws at the same time.

  10. a concerned mommy
    January 5, 2010 at 4:00 pm #

    Sure, it would take a while to play the game of bad laws pick-up sticks, but it’s still worth playing.

  11. Josh Williams
    January 5, 2010 at 11:02 pm #

    You know, probably the most powerful and influential admirer of Rand was Alan Greenspan himself. I think you can look at his career if you want to see some of the practical implications of Rand’s Objectivism.

    I think Rand’s mistake was, that private individuals are not actually more trustworthy or virtuous than the government.

  12. Clumpy
    January 6, 2010 at 12:34 pm #

    I think that one main problem we have is that while the economic debates we’ve been having are legitimate (government laissez-faire contrasted with redistributions and programs), the American Right really is out to stomp on the little guy and benefit corporations and the powerful within, and so is the Left for the most part, due to the miracle of campaign contributions and lobbying.

    Part of the necessary change for a truly virtuous society really will be a countrywide change of heart beginning with our discourse, and this will never happen as long as we’re used to thinking of Blackwater and California’s awful privatization of the water system whenever we hear “private sphere.” Once we see successes privatizing things we’re used to thinking of as public (without creating unaccountable bureaucratic private groups propped up by the government, worse than government service itself) we’ll be able to see what works better as a private enterprise.

  13. Marc
    January 6, 2010 at 9:40 pm #

    People need to run for office with the sole purpose being to repeal unneccesary laws rather than create new ones.

  14. M
    January 9, 2010 at 3:20 pm #

    I agree with the remarks here, but wonder what others consider of these quotes.

    The societies in which many of us live have for more than a generation failed to foster moral discipline. They have taught that truth is relative and that everyone decides for himself or herself what is right. Concepts such as sin and wrong have been condemned as “value judgments.” As the Lord describes it, “Every man walketh in his own way, and after the image of his own god” (D&C 1:16).

    As a consequence, self-discipline has eroded and societies are left to try to maintain order and civility by compulsion. The lack of internal control by individuals breeds external control by governments. One columnist observed that “gentlemanly behavior [for example, once] protected women from coarse behavior. Today, we expect sexual harassment laws to restrain coarse behavior. . . .

    “Policemen and laws can never replace customs, traditions and moral values as a means for regulating human behavior. At best, the police and criminal justice system are the last desperate line of defense for a civilized society. Our increased reliance on laws to regulate behavior is a measure of how uncivilized we’ve become.” – Elder D. Todd Christofferson

    “All things tend to corrupt perverted minds” – Marcus T Cicero

  15. Connor
    January 14, 2010 at 9:45 pm #

    This article is a great rebuttal of the whole body imaging scanners:

    The TSA already subjects your carry-on bags to X-ray scanning that penetrates the “skin” to show what’s beneath. Yet screeners routinely fail to discern the guns, knives, and other contraband their monitors show. Sometimes undercover federal investigators are smuggling those weapons to test screeners; other times, passengers who’ve forgotten the pistol or ammunition in their knapsack turn themselves in when they reach their gate. Expecting screeners who overlook the hunting knife beside a paperback novel to find the explosives taped near a woman’s… Well, let’s just say the distractions of whole-body imaging are considerably greater than anything in the average carry-on.

    And in agreement with the proposition I have here made:

    There’s a far simpler, constitutional, and less offensive way to protect aviation than photographing two million passengers in their birthday suits each day: Free the airlines from the federal government’s stranglehold on security. Let each company determine what works best for its routes, customers, and specific risks. Does anyone seriously believe that politicians and bureaucrats know more about securing planes than pilots and executives who’ve spent their lives in the industry? Even baggage handlers could give Congress a lesson in preventing terrorists from hiding bombs in checked luggage — yet the Feds dictate to them instead.

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