The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice
by Paul Craig Roberts and Lawrence M. Stratton (Roseville, Calif.: Prima Publishing, 2000); 240 pages; $24.95.
IT OFTEN SEEMS that liberty is only really appreciated when it is either directly threatened or has been lost. In the 1930s, when liberty was challenged by the expansion of Soviet communism, Italian fascism, and German Nazism on the European continent, and when the interventionist and planned-economy ideals were growing even in the traditional western democracies of Great Britain, France, and the United States, defenders of freedom reminded their fellow citizens of the value and importance of the liberty that was increasingly being trampled underfoot.
For example, in 1935 there appeared two books, both by Francis W. Hirst: Liberty and Tyranny and Economic Freedom and Private Property. A leading English classical liberal and free marketeer who had once been the senior editor of The Economist magazine, Hirst assigned himself the task of reminding his fellow Englishman of the long and difficult history through which the people of England had acquired over many centuries their cherished civil and political liberties as well as their economic freedoms.
Hirst discussed the courageous men in English history who had fought and risked their own lives for the right of trial by jury; the rule of law; the writ of habeas corpus; the abolition of torture as a means of forcing confessions; the freedoms of thought, expression, and the press. And the principles of the right and sanctity of private property and the freedom of domestic and foreign trade. As Hirst expressed it,
I have recited the heritage of our own past in the hope that Englishmen and Americans will be stirred by the achievements of their ancestors to defend stoutly the ground won by so much courage and self-sacrifice.
But how many of us today know the history and understand the real significance of these political, civil, and economic freedoms? We live in a time in which most of the “big” tyrannies of the 20th century have all been relegated to the dustbin of history even when they continue to survive politically in some countries. Instead, in the United States our liberty has been and continues to be lost through small changes in legislation or bureaucratic rulings that occur so incrementally that most of us hardly notice that each passing day leaves us less free than we were in the past.
And no longer do people even know the history or the meaning of the Declaration of Independence, the U.S. Constitution, or the Bill of Rights as guardians of our individual liberty. If people still object to various encroachments on their personal, civil, and economic freedoms it is mostly as lingering residues of cultural prejudices that few Americans could logically articulate and defend.
Paul Craig Roberts and Lawrence Stratton, in an earlier book, The New Color Line, had shown how affirmative action laws and policies are undermining our basic freedoms of association and choice through a new tribalism (see the review in Freedom Daily, May 1996). In their new book, The Tyranny of Good Intentions, they attempt to reawaken in Americans an appreciation of what they refer to as the “rights of Englishmen” that have served as the foundation of freedom in Great Britain and the United States, and why and how these rights have been and are continuing to be lost.
What are these “rights of Englishmen” which are meant to secure and protect our liberty from the tyranny of the state? The authors summarize them:
No crime without intent, no retroactive liability, no self-incrimination, no invasions of the attorney-client privilege, no infringement of a vigorous and vocal defense; when a person’s property is respected as an extension of himself and when prosecutors exercise sober discretion, the chances of tyranny diminish. Each of these protections, which took centuries to evolve, has taken a ferocious beating during the twentieth century.
This is a strong charge, but Roberts and Stratton marshal an extensive body of evidence to demonstrate the extent to which every one of these essential civil and legal liberties has been and is under attack in the United States. They argue that historically the beginning of this decline in respect of individual rights by the law started with Jeremy Bentham, the intellectual father of utilitarianism. He argued that in the defense of the greatest happiness of the greatest number the legal structure should eliminate the right of lawyer-client confidentiality, permit the reinstitution of torture to “get at the truth” for the good of society, and incarcerate people who are defined as potential criminal types before they can do harm to the society as a whole. Bentham’s practical philosophy of legal and penal reform was a fountainhead for the 20th century’s ideology of social engineering.
Here are a few of the examples the authors use to make their case:
Crimes without intent. The 1989 Exxon oil spill in Alaska was transformed by the U.S. Justice Department from an accident into a premeditated crime.
Retroactive law. Under the Superfund Act of 1980, people who had used landfill locations for dumping purposes before the law was passed have been made legally liable for hazardous-waste clean-up costs, regardless of whether they had scrupulously followed the existing law prior to the Act’s passage.
Reinventing torture. Plea bargaining has become a new form of physical and psychological threat under which, unless the accused agrees to confess to a lesser charge — even if he insists on his innocence — the prosecutor threatens to charge him with more serious crimes (any one of which might put him behind bars) and a harsher sentence.
Undermining attorney-client privilege. Prosecutors have seized or frozen the assets of lawyers and entire law firms under the accusation that information acquired by the attorney from the client must be turned over to the prosecution, resulting in some lawyers’ abridging their confidential relationship with a client.
Asset-forfeiture laws. In the name of fighting the drug war, the federal government has given federal, state, and local law enforcement agencies the legal authority to seize and confiscate real and monetary assets under suspicion of criminal activity, without filing formal charges or winning a conviction in a court of law.
Roberts and Stratton argue that among the prime motives for this radical change in the law are (a) a disregard for and lack of understanding of the purpose and necessity of restricted legal powers to protect the innocent from unjust accusation, infringement, and penalty; (b) the bureaucrat mentality in which the prosecuting attorney views convictions as a steppingstone to power and promotion, instead of seeing his position as one of responsibility for ensuring justice based on evidence of actual crimes in the narrow confines of traditional prosecutorial authority in order to prevent abuse; and (c) the social engineering mentality by both liberals and conservatives in their placing priority on trying to ensure “socially just” outcomes or morally proper behavior in society.
They warn that unless there is a reawakening and a rebirth of understanding why these civil liberties are important and how a loosening of various legal restraints on government threatens them, the United States may well end up in the same nightmare state that millions suffered under in the Nazi and Soviet regimes.
