Judge Tucker was right. Our life, liberty, and property are not safe when legislatures are in session—or when bureaucrats are working every day—because at any moment, in a system of statutory law, we might find ourselves doing something illegal without even knowing it.
Children selling lemonade throughout the “land of the free” have no idea that they could be shut down or fined—or even jailed if they resist. They are innocently unaware that statutes compel them to obtain permission slips before offering their delicious drinks to consenting customers.
The question we need to explore is: despite engaging in illegal conduct, are they in the wrong?
NOTES
Frédéric Bastiat, The Law (Salt Lake City: Libertas Institute, 2013), 7-8.
Andrew Salmon, “What North Koreans Really Think of Kim Jong-un,” Telegraph, April 8, 2012, http://www.telegraph.co.uk/news/worldnews/asia/northkorea/9191998/What-North-Koreans-really-think-of-Kim-Jong-un.html.
Jeff Guo, “It Is Actually Illegal in Colorado to Collect the Rain That Falls on Your Home,” Washington Post, March 24, 2015, https://www.washingtonpost.com/blogs/govbeat/wp/2015/03/24/it-is-actually-illegal-in-colorado-to-collect-the-rain-that-falls-on-your-home/.
Bastiat, The Law, 2.
John Quincy Adams, The Jubilee of the Constitution (New York: Bedford, 1839), 9.
Paul Leicester Ford, ed., The Works of Thomas Jefferson, vol. 12 (New York: G. P. Putnam’s Sons, 1905), 409.
Quoted in William Knox et al., eds., The Controversy Between Great Britain and Her Colonies Reviewed (London: privately printed for J. Almon, 1769) xxxviii-xxxix; emphasis added.
John Locke, Two Treatises on Government: A Translation into Modern English (Manchester, UK: Industrial Systems Research, 2009), 106.
Ibid.
Ibid.
Thomas Hobbes, Leviathan (London: Forgotten Books, 2008), 89.
Quoted in Frederick Copleston, ed., A History of Philosophy, vol. 3 (New York: Continuum International Publishing Group, 2003), 330.
Robert T. Radford, ed., Cicero: A Study in the True Origins of Republican Philosophy (New York: Rodopi B. V., 2002), 43.
Quoted in Harold C. Syrett, ed., The Papers of Alexander Hamilton, vol. 26 (New York: Columbia University Press, 1961), 85.
Charles Shively, ed., The Collected Works of Lysander Spooner (Weston: M & S Press, 1971), 3.
Webster’s Dictionary, 1829 ed., s.v. “positive,” http://webstersdictionary1828.com/Dictionary/positive.
Robert Barnes, “The Spurned Gay Couple, the Colorado Baker and the Years Spent Waiting for the Supreme Court,” Denver Post, August 14, 2017, http://www.denverpost.com/2017/08/14/colorado-gay-wedding-cake-case/.
Ibid.
John Austin, Lectures on Jurisprudence, Or, The Philosophy of Positive Law, ed. Robert Campbell (London: John Murray, 1869), 220.
Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet, 1967), 379.
H.A. Washington, ed., The works of Thomas Jefferson, vol. 2 (New York: Townsend Mac Coun., 1884), 404.
Gideon John Tucker, Reports of Cases Argued and Determined in the Surrogate’s Court of the County of New York, vol. 1 (New York: Banks & Brothers, 1870), 249.
Alexander Hamilton, James Madison, and John Jay, The Federalist on The New Constitution, Written in the Year 1788 (Hallowell: Glazier, Masters & Smith, 1842), 287.
Abby Phillip, “Why Eagle Feathers Could Land This Native American Pastor in Prison,” Washington Post, May 27, 2015, https://www.washingtonpost.com/news/acts-of-faith/wp/2015/05/26/why-eagle-feathers-could-land-this-native-american-pastor-in-prison/.
Daniel A. Flores, “Robert Soto Fought for Years to Have Ceremonial Feathers Returned to Local Lipan Apaches,” The Monitor, January 29, 2017, http://www.themonitor.com/life/vidasunday/article_8c064efe-e4cb-11e6-bfd3-7383bea2ba24.html.
“Steve Martin’s Monologue,” Saturday Night Live, season 3, episode 9, directed by Dave Wilson and James Signorelli, aired January 21, 1978, (New York: NBC Studios, 1978), http://snltranscripts.jt.org/77/77imono.phtml.
John Baker, “Revisiting the Explosive Growth of Federal Crimes,” Heritage Foundation, June 16, 2008, http://www.heritage.org/report/revisiting-the-explosive-growth-federal-crimes.
Joycelyn M. Pollock, Criminal Law (New York: Routledge, 2016), 49.
18 USC § 1865 & 36 CFR §7.13(l)(13).
21 USC §333 & 21 CFR §501.17(a)(1).
16 USC §1375(b) & 50 CFR §17.41(e)(2)(i).
21 USC §§610, 676 & 9 CFR §319.307.
16 USC §1375 & 50 CFR §18.34(b)(2)(ii).
7 USC §7734(a)(1)(B) & 7 CFR §319.40–5(a).
15 USC §1254, 16 CFR §1500.18(a)(8) & 1511.6.
18 USC §3061 & 39 CFR §232.1(j).
Bill Estep, “Amish Man Convicted of Selling Improperly Labeled Health Products,” Lexington (KY) Herald Leader, March 2, 2017, http://www.kentucky.com/news/state/article135986318.html.
Greg Kocher, “Amish Farmer Sold Herbal Health Products. He’s Going to Prison for 6 Years,” Lexington (KY) Herald Leader, June 30, 2017, http://www.kentucky.com/news/local/crime/article159031869.html.
Ibid.
Paul Rosenzweig, “Ignorance of the Law Is No Excuse, But It Is Reality,” Heritage Foundation, June 17, 2013, http://www.heritage.org/crime-and-justice/report/ignorance-the-law-no-excuse-it-reality.
“If ... the ability to tell right from wrong should turn out to have anything to do with the ability to think, then we must be able to ‘demand’ its exercise from every sane person, no matter how erudite or ignorant, intelligent or stupid, he may happen to be.”1
Hannah Arendt
WHAT IS WRONG?
N
In November 2014, 90-year-old Arnold Abbott began handing out plates of hot food to homeless people in a south Florida park, as he had done many times before. But this time was different. An approaching policeman grabbed his arm and said, “Drop that plate right now,” almost as if Abbott was holding a gun, he later remarked.2
He was charged with violating the law for feeding the homeless—a law that the city council had passed just a week prior. That law limited where feeding sites could be located, required that people providing food obtain a permit, and required food providers to also provide portable toilets, hand-washing stations, and ensure that the food is precisely maintained at certain temperatures.
Abbott created the Love Thy Neighbor Fund in 1991 as a tribute to his wife who had passed away. The organization continued the important work that they had enjoyed doing together, feeding the homeless and supporting the needy.
Despite being punished by the city for his compassionate act, Abbott continued his work—and continued violating the law. He racked up four additional citations, each of which involved a fine of up to $500 and up to 60 days in jail. Commenting on the controversy, Abbott said:
The city passed an ordinance requiring us to have a Porta-Potty. It’s ridiculous. The whole thing was designed to rid [the city] of its homeless. Police told me anyone who touches a pan… anyone who is involved, will be arrested.3
“The reason we’re not going to back down,” explained a rabbi accomplice who had been helping feed the needy, “is because it’s so unjust to put people in jail for helping other people.”4 Abbott wasn’t that worried. “I’m not afraid of jail,” he said. “I’m not looking to go, but if I have to, I will.”5 Fortunately, he didn’t have to. The attention of the world focused briefly on Abbott’s case as the international media widely published the story of a simple, old man helping the homeless and being harassed by the government because of it. The city stopped enforcing the law due to negative publicity. Abbott won—at least for a while.
Let’s contrast this story against another one. Wilhelm Keitel was born in a small German village in 1882. As the oldest son, he hoped to one day take over management of Helmscherode, t
he 600-acre estate his grandfather had purchased years before. His family had been involved in land ownership and management for generations; he had farmer’s blood in his veins. But his father refused to relinquish control of the estate. Keitel had to choose another profession.
He chose a line of work that, like being a landowner, was held in high esteem in Germany, but was at odds with his family’s heritage of opposition to the ruling regime. He signed up for the military. It was a decision that would later lead to his execution.
As the Nazis gained political power, many within military leadership saw Adolf Hitler as an incompetent, juvenile hothead who was causing problems. Many top-level military officers tried to figure out how best to assassinate him and take over the government to show the world that not all Germans were like the Nazis. (In 1944, some carried out a plan to do just that, but it failed, leading to thousands of arrests and executions by the Gestapo—the clandestine and cruel Nazi police.) But not Keitel.
After some brief opposition to some of Hitler’s decisions and desires, Keitel eventually became supremely loyal to the Führer—so much so that his military colleagues generally viewed him with disgust because he had transformed himself from a respectable general into Hitler’s “yes man.”6
As the Nazi regime implemented its reign of terror, Keitel played an intimate part. As a leader in the military, and at Hitler’s direction, he had signed dozens of orders that called for soldiers and political prisoners to be killed or “disappeared.” After the war concluded and top-level Nazi operatives were put on trial for their war crimes at Nuremberg, Keitel admitted that he knew these orders were illegal. In a letter to an interrogator for the American military, he wrote:
In carrying out these thankless and difficult tasks I had to fulfill my duty under the hardest exigencies of war, often acting against the inner voice of my conscience and against my own convictions. The fulfillment of urgent tasks assigned by Hitler to whom I was directly responsible demanded complete self-abnegation.7
In his defense, like other Nazi and German military officials charged with committing war crimes, Keitel aimed to shirk responsibility for what he did by noting that he was merely following orders. This argument was in line with the Führerprinzip, or “leader principle”—a political argument in Germany at the time that suggested that all laws and decisions must be in line with whatever the Führer (Hitler) said. Citing this line of thinking, Keitel was hoping to be absolved of the horrific acts he helped implement. He was expecting that the positive laws Hitler set up would override the natural law—murder is always wrong. These hopes and expectations did not materialize; Keitel was sentenced to death by hanging.8
Was Keitel wrong to do what he did? What about Abbott? Both men were following orders from other people, in a sense. Abbott was doing what he said God had commanded. Keitel was doing what the Führer had commanded. But their actions are polar opposites; one was helping people, the other was killing people. One was inherently good, though made illegal; the other was inherently bad, though made legal.
This contrast helps us understand the fundamental question that is the entire purpose of law: to define what is wrong, to prohibit it, and to punish those who do it. To explore the idea further, let’s look at two Latin phrases that are commonly used to help explain the two types of “wrong” actions: malum in se (wrong in itself) and malum prohibitum (wrong because it is prohibited).
MALUM IN SE
For several years, ABC aired a popular game show, The Dating Game, in which eager contestants applied from around the country for a chance to appear on TV and perhaps find love along the way. One of the many hopefuls in the 1978 season was a man from California named Rodney Alcala—a man who was quite different from his competitors. Rodney was no ordinary bachelor—he was a convicted felon who had sexually violated a young girl and attempted to murder her.9
Despite having served time in prison and being a registered sex offender, ABC allowed Alcala to appear on the show—and he won. The “lucky lady” who picked him for a date, rather than the two other men, ended up refusing to go out with him, calling him “creepy.”
She was right. Before the TV appearance, Alcala had killed at least two women in California and two more in New York. His crimes continued in the following years, and while the total body count is unknown, detectives estimate that he abused and killed several dozens of women.10
That feeling in your gut? I feel the same as I write these awful words. These horrendous murders shock our senses, and we condemn them. They are actions so awful that they clearly violate our moral code of conduct, and we fully agree that they should be prohibited and punished. This is an example of a malum in se—something that’s inherently wrong. These actions “violate the natural, moral or public principles of a civilized society.”11 We can readily and easily understand that they are improper behavior.
An action that is malum in se (or mala in se, plural) is not dependent on a legislator passing a bill to be wrong; killing an innocent person or stealing candy from a child is wrong even if Congress failed to pass a law banning these activities.
Another important point: these types of crimes have a victim who has been harmed by the aggressor. A person is clearly wronged when somebody commits a malum in se offense. An innocent person loses his life; a child loses his candy. Victims such as these help us clearly identify when something wrong has happened. We don’t have to look to a list of laws to interpret whether something bad has happened—we can see it with our own eyes.
As you can tell, these types of offenses pertain to the natural or common law. A society-wide understanding of something being a wrongful act justifies punishing those who commit them. Murder, rape, robbery, burglary, and theft—these types of acts, which have a clear victim, are, therefore, clearly wrong.
Now, things get tricky when the government specifically says that there is no victim—in other words, when politicians legalize the wrongful activity. Every child knows that it’s wrong to steal, and that is a clear malum in se. But then consider a policy called civil asset forfeiture, which literally allows government prosecutors to take people’s property without even charging them with a crime. We are supposed to be presumed innocent until we are proven guilty by a government lawyer, so you might think that until that happens, you should be able to keep your property. Think again. Across the country, people have their money, cars, computers, or even homes taken by the government even though they are innocent of any wrongdoing.
It’s difficult to imagine that laws like this actually exist. Some might think that even though it’s “on the books,” the law isn’t actually used. That’s not at all the case with forfeitures. For example, in 2014—and for the first time ever in American history—federal agents took more property from people than burglars did.12 Consider just one department within the federal government that takes property from people without charging them with a crime: the Drug Enforcement Administration (DEA). From 2007 to 2017, the agency seized over $3 billion from people without any judicial review whatsoever—no criminal or civil charges in court. A report of this program by the Inspector General noted that the Department of Justice “does not collect or evaluate the data necessary to know whether its seizures and forfeitures are effective, or the extent to which seizures present potential risks to civil liberties.”13 The federal government is flying blind while scooping up people’s property—people like Joseph Rivers.
Rivers had a dream of starting a music video company, and after saying goodbye to his family in Detroit, boarded an Amtrak train to Los Angeles. He brought the $16,000 his friends and family had donated to help him start the business. But he never made it to his destination. At a stop at the Amtrak station in Albuquerque, New Mexico, DEA agents boarded the train and began asking passengers where they were headed and why. When asked, Rivers answered, and when agents requested to search his bags, Rivers agreed. After all, he hadn’t done anything wrong; he wasn’t accused of bre
aking a law.14
The agents found the money still in the bank envelope; Rivers explained that he was using it to start a new business and that he had trouble in the past withdrawing large amounts of cash from out-of-state banks. The government employees didn’t believe him; they suspected that the money was connected to some sort of drug activity. There was no evidence of this—no guns, no drugs, and no information that would suggest such a connection. But that lack of evidence didn’t prevent the DEA agents from taking the money. Rivers commented:
These officers took everything that I had worked so hard to save and even money that was given to me by family that believed in me. I told [the DEA agents] I had no money and no means to survive in Los Angeles if they took my money. They informed me that it was my responsibility to figure out how I was going to do that.15
Rivers wasn’t arrested or charged with a crime. He simply had his money taken, and his dreams delayed.
Is something that is wrong for you and I to do suddenly permissible because some politicians said it was okay? Recall what Bastiat said: legitimate law is merely the “collective organization of [an] individual right.” In other words, government can only do what we can do, if we group together and decide to delegate that power to the government. The definition of malum in se—wrong in and of itself—does not have an asterisk attached, explaining in a footnote that the definition does not apply to the government. Something that violates “the natural, moral or public principles of a civilized society” is wrong for you, me, and government employees, too.
MALUM PROHIBITUM
Romaine Quinn was a senior in high school in 2009. Rather than campaigning to be class president, he took it up a notch—he decided to try and win a spot on the city council in Rice Lake, Wisconsin. He won, and only a year later—as a freshman at a nearby university—he was elected to be the mayor, the youngest in the city’s history.
Lessons from a Lemonade Stand Page 4
