Forum • 2000 • 242 pages • $24.95
How safe are people from the encroachments of government into their lives? That has varied from place to place and time to time. In Stalin’s Soviet Union, for example, people had no security whatever. The rulers could do with them as they pleased because the concept of a sphere of personal freedom protected by the rule of law was unknown. Even the wealthy and powerful could be done away with when their superiors thought it expedient.
Contrast the situation of a high Soviet official like Nikolai Bukharin (who was summarily tried and executed in one of Stalin’s purges) with that of an unemployed British coal miner at the same time. The lowly coal miner’s life, liberty, and property were protected against government incursion as strongly as the crown jewels. “The Rights of Englishmen” was a revered notion that kept government in check.
Under our constitution and common-law heritage, Americans too enjoyed “the Rights of Englishmen,” but as economist Paul Craig Roberts and legal scholar Lawrence M. Stratton demonstrate in The Tyranny of Good Intentions, we are losing the legal protections that our ancestors took for granted. The authors write, “America’s reputation as the ‘land of the free’ is rooted in its Anglo Saxon legal and political tradition. As the twenty-first century begins, there is evidence that much of this tradition has been lost.” They proceed to prove that the laws which once shielded Americans from grasping, self-promoting officials have been so weakened in recent decades that we are now at the mercy of politicians, bureaucrats, and especially rogue law-enforcement agents.
The examples Roberts and Stratton provide are numerous and frightening. One of the greatest of the holes in the rule of law has come from asset-forfeiture provisions, which now put the property of every American in jeopardy. Yes, every. There is no way for anyone to ensure that some spurious charge of illegal activity won’t be made against you, or that someone won’t somehow use your property in connection with any of our growing list of crimes. Consider, for example the case of Exequiel Soltero. In 1993, the Drug Enforcement Agency seized his Seattle restaurant under the justification that his brother, who had no ownership in the business, had sold some cocaine in the men’s room. The complete innocence of Exequiel was irrelevant; his property had been “used in the commission of a crime,” and that’s all it takes. When the misdeeds of others can cost you your property, no one is safe.
The Soltero case isn’t a unique, isolated instance. Seizures like that happen routinely as “law enforcement” officials have realized that the easiest way to pad their budgets is to seize property. Even if the case is thrown out, rarely does the owner get back all that he has lost. Often our illustrious law enforcers will strike a deal like this: “We’ll give you back half if you agree not to sue for it all—but if you do, we’ll tie you up in court for years.”
Roberts and Stratton aren’t saying that all or even a significant percentage of law-enforcement personnel are so dishonest as to use the forfeiture provisions for their own gain, but it’s clear that it is now possible for them to do so. It’s a license to steal that will attract those who aren’t burdened with too much conscience.
Also frightening are the cases Roberts and Stratton present showing prosecutors who are so interested in polishing their public image (usually in quest of higher office) that they will prosecute and convict innocent people. Under our old legal order, the authors write, “Since the prosecutor’s function is to find truth, he must not override the rights of the defendant in order to gain conviction.” But that ethic has been widely replaced with a win-at-all-costs mentality among prosecutors, who now frequently withhold exculpatory evidence, manipulate the media to color public perceptions of the case, suborn perjury, and use other tactics designed to make themselves look “tough” and “effective” to the public.
Other targets of Roberts and Stratton include the criminalization of accidents, the trend toward ex post facto laws, and plea bargaining as a form of coercion.
Who is responsible? Both “liberals” and conservatives have a lot to answer for, say the authors. Much erosion of our legal protections has come at the hands of “liberals” eager to use draconian measures to, as they see it, “protect the environment.” And much has also come at the hands of conservatives who have concluded that the war against drugs cannot be won without resorting to methods reminiscent of the Inquisition. People in both main political camps have shoved aside our traditional legal order with its strong defense of life, liberty, and property for all, in their zeal to win the political battles of the day.