All Commentary
Thursday, June 1, 2000

Punishing the Many

Most Regulations Make the Accused Prove His Innocence

Russell Madden teaches at Mt. Mercy College in Cedar Rapids, Iowa.

Anyone who has observed children will recognize that, ironically, they often demonstrate a more stringent and uncompromising sense of justice than the adults around them. A small child who must divide a piece of cake, for example, will be excruciatingly precise in cutting it lest the “chooser” glom onto a larger slice. Whether the issue is whose turn it is to clear the dishes or take out the trash, or who broke that lamp, young people appeal to an almost innate sense of propriety in demanding they be treated fairly.

This tendency to rigor is perhaps even more evident when parents must mete out punishments and rewards. To be falsely penalized for something they did not do will stir up the loudest and shrillest of complaints among the innocent offspring. Unfortunately too many adults mildly, meekly, and silently accept such mistreatment when dealing with social and political issues.

The essence of a moral view of justice entails a recognition that only individuals can be held accountable for the right and wrong they do. Because each of us possesses free will and thus the capacity to make choices among alternatives, when we act on our best (or sometimes worst) judgment, we and we alone should reap the benefits of selecting wisely and appropriately; and we and we alone should suffer the negative consequences of picking hastily, foolishly, or ignorantly.

If good and evil are to mean anything, our moral autonomy as beings with the capacity for rational behavior must be accepted. Any other basis for determining who is responsible for destructive or constructive outcomes leads to the kind of confused legal and political realm we labor under today.

This individualistic conception of justice did not always hold sway. Indeed, collective guilt has a long history. Throughout the past, whole families—sometimes entire cities—were held responsible for what fathers or kings might have done. The average citizen of ancient Carthage would have had little influence on the policies of his leaders. Nevertheless, he paid the price of Rome’s disfavor when his home was razed and the ground salted.

Our Founding Fathers recognized the inherent injustice in accepting the doctrine of visiting unto the sons the sins of the father. Article III of the Constitution says that “no Attainder of Treason shall work Corruption of Blood.” In other words, the family of a traitor cannot be punished simply because the members are related to the perpetrator.

The bulk of today’s legal code, however, is rife with violations of this principle. The general collectivization of our culture in the twentieth century permeates every crack and crevice of our relationship with the law. Incoherently, our politicians hold individual citizens blameless for many of their deficiencies (being poor, homeless, drug- or alcohol-besotted, sexually promiscuous, or abysmally ignorant), while pointing a narrow finger at us all. “Society” does not provide enough resources or understanding or opportunities.

But “society” is only an abstraction, a way of describing the relationships, actions, and beliefs of individuals.

In addition to supplying a (poor) rationale for the plethora of social programs dragging us down, from Social Security and Medicare to business subsidies and disaster relief, the notion of collective responsibility, obligation, or guilt obliterates proper understanding and application of justice and equity by punishing the innocent majority for the transgressions of the criminal few.

Most regulations, laws, and prohibitions are propounded by pointing out that abuses have occurred in the past. Thus because certain people have engaged in improper behavior, everyone must be presumed to be a potential criminal and have his choices and actions inspected, constrained, or curtailed. Such legal machinations act as a kind of prior restraint. They sanction the notion that the agents of the government must, in essence, punish citizens for potential improprieties beforehand by means of dictates, fees, or restrictions on what they do and how they do it.

But an implicit assumption of guilt—before a person has even acted—violates the constitutionally recognized principle that one can be punished only after one has actually done something wrong. Even then, the legal system must assume the innocence of the accused until proven guilty. To make the accused prove he is innocent—as most regulations on business and individuals in effect do—is rank injustice. To add insult to the injury, many of the laws strangling us today are based on some group’s notion of morality regardless of whether or not offenders have actually violated anyone’s rights. (The consensual “crimes” related to prostitution, drug use, and gambling come to mind.)

Affirmative action policies punish those who were never racist for the sins of those long dead, an indirect “corruption of blood.” Business regulations assume that only state scrutiny prevents all entrepreneurs from being polluters, swindlers, and cheaters. Sexual harassment and anti-discrimination laws (whether for sex, race, ethnic background, age, or disability) make us out to be bigots held in check only by the good graces of the bureaucrats.

Tens of thousands of gun control laws treat peaceful, rights-respecting individuals as criminals held at bay only because they must jump through arbitrary, unconstitutional hoops that disarm and endanger millions while leaving the field unchallenged to the rapists, robbers, and burglars.

The rule of law has morphed into the rule of men. The Constitution has been turned on its head. Instead of the individual being at the pinnacle of the pyramid, he is crushed by the weight of the masses who take precedence in their anonymity over his unique life and personality. Instead of the individual being able to do anything not prohibited and the government only that which is permitted, in modern society the state has virtual carte blanche to chase after every whim. The true, fundamental component of our culture—a single real, breathing person—is bound and chained, able to choose only from a shorter and shorter list of what is allowed him as a privilege, not a right.

The very notion of rights has been both bloated and choked. On the one hand, “rights” to health care, housing, food, education, and on and on are manufactured out of thin air. On the other hand, property rights—the foundation for implementing the right to your own existence—are suppressed by the rampant moral inflation of bogus rights. Coupled with both malign neglect and direct attacks on property, we drift without legal anchor or direction.

To restore freedom, we must reclaim the moral initiative. We must reconsecrate respect for justice as applicable to the individual, not the collective. We must hold as sacrosanct our right to earn and hold property, to direct its use, and to wield it as a shield against malefactors. We must proclaim our right as free, autonomous, and sovereign individuals to do what we want, say what we will, and build our lives without the permission, sanction, or approval of any group. We should and must never be punished for the transgressions of others.