“No problem,” you might say in response to some of these stories. “If I’m ever arrested for one of these malum prohibitum laws, I’ll just say that I wasn’t aware of the law. How can I be held accountable for what some group of politicians decides to pass into law, if I don’t even know about it?”
You’d be wrong. Whether you are aware of what the government does or not, you’re still held responsible for it. Remember: Ignorantia juris non excusat (“ignorance of the law is no excuse”). Even if you are unaware of the malum prohibitum law you violate, the government won’t care. You’ll be guilty just the same.
And that’s why mens rea is so important. The government should first have to establish that you had a guilty mindset—that you both knew about the law and purposefully intended to violate it. This would protect individuals who have accidentally or unknowingly broken the law because if the law is not easily understood or readily apparent, as in the case of malum in se laws, it’s unreasonable to punish them.
NOTES
Hannah Arendt, The Life of the Mind: The Groundbreaking Investigation on How We Think (San Diego: Harcourt, 1981), 13.
Mike Clary, “Homeless Advocate, 90, Gets World Attention as Fort Lauderdale Tries to Stop His Outdoor Feedings,” Fort Lauderdale (FL) Sun Sentinel, November 9, 2014, http://www.sun-sentinel.com/local/broward/fort-lauderdale/fl-homeless-advocate-abbot-profile-20141107-story.html.
Kevin Conlon and Catherine E. Shoichet, “90-year-old Florida Man Charged for Feeding Homeless People,” CNN, November 5, 2014, http://www.cnn.com/2014/11/04/justice/florida-feeding-homeless-charges/index.html.
Peter Holley, “After 90-year-old Is Arrested, Florida Judge Halts Law That Restricts Feeding the Homeless,” Washington Post, December 3, 2014, https://www.washingtonpost.com/news/post-nation/wp/2014/12/03/after-90-year-old-is-arrested-florida-judge-halts-law-that-restricts-feeding-the-homeless/.
“90-year-old Florida Man Charged for Feeding Homeless People,” CNN.
Samuel W. Mitcham, The Rise of the Wehrmacht, vol. 1 (Westport: Praeger Security International, 2008), 107-8.
Gene Mueller, The Forgotten Field Marshal, Wilhelm Keitel (Durham, NC: Moore Publishing, 1979), 342.
Walter Gorlitz, ed., The Memoirs of Field-Marshal Wilhelm Keitel, Chief of the German High Command, 1938-1945 (New York: Cooper Square Press, 2000).
Michael Winter, ”Serial Killer Was ‘Dating Game’ Winner in ‘78, During Spree,” USA Today, March 8, 2010, http://content.usatoday.com/communities/ondeadline/post/2010/03/serial-killer-alcala-was-dating-game-winner-in-78-during-spree/.
Greg Mellen, “Serial Killer Rodney Alcala Charged in Slaying of Pregnant Woman in Wyoming,” Orange County Register (CA), September 21, 2016, http://www.ocregister.com/2016/09/21/serial-killer-rodney-alcala-charged-in-slaying-of-pregnant-woman-in-wyoming/.
The People’s Law Dictionary, s.v. “malum in se,” http://dictionary.law.com/Default.aspx?selected=1201.
Christopher Ingraham, “Law Enforcement Took More Stuff from People Than Burglars Did Last Year,” Washington Post, November 23, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/.
Christopher Ingraham, “Since 2007, the DEA Has Taken $3.2 Billion in Cash from People Not Charged with a Crime,” Washington Post, March 29, 2017, https://www.washingtonpost.com/news/wonk/wp/2017/03/29/since-2007-the-dea-has-taken-3-2-billion-in-cash-from-people-not-charged-with-a-crime/.
Joline Krueger, “DEA to Traveler: Thanks, I’ll Take That Cash,” Albuquerque Journal, May 6, 2015, https://www.abqjournal.com/580107/dea-agents-seize-16000-from-aspiring-music-video-producer.html.
Ibid.
“Area Mayor Faces Fine for Accepting Illegal Campaign Contribution,” WREX, October 6, 2010, http://www.wrex.com/story/13278325/area-mayor-could-be-fined-for-accepting-illegal-campaign-contribution.
Steven Nelson, “Man Fined $500 for Criticizing Traffic Cameras with Math,” U.S. News and World Report, April 26, 2017, https://www.usnews.com/news/articles/2017-04-26/man-fined-500-for-criticizing-traffic-cameras-with-math.
Kim Hjelmgaard, “‘I’ve done a bad thing,’ Says British Girl, 5, Fined for Selling Lemonade,” Spectrum, July 21, 2017, http://www.thespectrum.com/story/news/world/2017/07/21/british-girl-5-fined-selling-lemonade-united-kingdom/498680001/.
Ibid.
Michelle Ye Hee Lee, “Yes, U.S. Locks People Up at a Higher Rate Than Any Other Country,” Washington Post, July 7, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/.
Michelle Ye Hee Lee, “Does the United States Really Have 5 Percent of the World’s Population and One Quarter of the World’s Prisoners?,” Washington Post, April 30, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/04/30/does-the-united-states-really-have-five-percent-of-worlds-population-and-one-quarter-of-the-worlds-prisoners/.
”Incarceration,” Sentencing Project, http://www.sentencingproject.org/issues/incarceration/.
Paul Larkin and Michael Mukasey, “The Perils of Overcriminalization,” Heritage Foundation, February 12, 2015, http://www.heritage.org/report/the-perils-overcriminalization.
AZ Rev Stat § 3-2664 (1996 through 1st Reg Sess 50th Legis).
National Anthem; Manner of Playing, Massachusetts Code, § IV-1-264-9.
Pinball machines, etc, AR Code, § 5-66-111 (2012).
Collecting Seaweed, New Hampshire code, Section 207:48 (effective Nov. 1, 1973).
Eduardo Porter, “Numbers Tell of Failure in Drug War,” New York Times, July 3, 2012, http://www.nytimes.com/2012/07/04/business/in-rethinking-the-war-on-drugs-start-with-the-numbers.html.
“Criminal Justice Facts,” Sentencing Project, http://www.sentencingproject.org/criminal-justice-facts/.
Kathleen Miles, “Just How Much The War on Drugs Impacts Our Overcrowded Prisons, in One Chart,” Huffington Post, March 10, 2014, http://www.huffingtonpost.com/2014/03/10/war-on-drugs-prisons-infographic_n_4914884.html.
Ben Markus and Stephanie O’Neill, “The Difficulty of Enforcing Laws against Driving While High,” NPR, September 6, 2016, http://www.npr.org/sections/health-shots/2016/09/06/492810932/the-difficulty-of-enforcing-laws-against-driving-while-high.
Ed Pilkington, “Felony Murder: Why a Teenager Who Didn’t Kill Anyone Faces 55 Years in Jail,” Guardian, February 25, 2015, https://www.theguardian.com/us-news/2015/feb/26/felony-murder-teenager-55-years-jail-indiana.
Joan Biskupic, “High Court Weighs High-Profile Case Over Wetlands, EPA Fines,” USA Today, January 10, 2012, https://usatoday30.usatoday.com/news/washington/judicial/story/2012-01-09/epa-wetlands-scotus-court/52471646/1.
“St. George Shutting Down Airbnb Providers,” Libertas Institute, May 26, 2015, http://libertasutah.org/interview/st-george-shutting-down-airbnb-providers/.
“Chatham Fisherman Who Freed Whale Fined,” Cape Cod Times, October 1, 2009.
Stephanie Clifford and Jessica Silver-Greenberg, “Foster Care as Punishment: The New Reality of ‘Jane Crow’,” New York Times, July 21, 2017, https://www.nytimes.com/2017/07/21/nyregion/foster-care-nyc-jane-crow.html.
Helen Jung, “Jaywalking Arrest: Portland Police Did Not Violate SW Portland Man’s Constitutional Rights, Judge Says,” Oregonian (Portland, OR), January 30, 2014, http://www.oregonlive.com/portland/index.ssf/2014/01/jaywalking_arrest_portland_pol.html.
“The most improper job of any man… is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity.”1
J.R.R. Tolkien
WHO’S IN CHARGE?
N
One of the funniest satires about government comes from the film Monty Python and the Holy Grail. In this cult classic, King Arthur is on a quest to recruit some knights to join his court at Camelot. Arthur finds some pe
asants working in a field, and hopes to learn the identity of the knight who occupies the nearby castle. Here’s a portion of their exchange:
ARTHUR: How do you do, good lady. I am Arthur, King of the Britons. Whose castle is that?
WOMAN: King of the who?
ARTHUR: The Britons.
WOMAN: Who are the Britons?
ARTHUR: Well, we all are. We’re all Britons and I am your king.
WOMAN: I didn’t know we had a king. I thought we were an autonomous collective.
DENNIS: You’re fooling yourself. We’re living in a dictatorship: a self-perpetuating autocracy in which the working classes-- …
ARTHUR: Please, please good people. I am in haste. Who lives in that castle?
WOMAN: No one lives there.
ARTHUR: Then who is your lord?
WOMAN: We don’t have a lord.
ARTHUR: What?
DENNIS: I told you. We’re an anarcho-syndicalist commune. We take it in turns to act as a sort of executive officer for the week.
ARTHUR: Yes…
DENNIS: But all the decisions of that officer have to be ratified at a special biweekly meeting.
ARTHUR: Yes, I see.
DENNIS: By a simple majority in the case of purely internal affairs-- …
ARTHUR: Be quiet! I order you to be quiet!
WOMAN: Order, eh? Who does he think he is?
ARTHUR: I am your king!
WOMAN: Well, I didn’t vote for you.
ARTHUR: You don’t vote for kings.
WOMAN: Well, how did you become king then?
ARTHUR [as angels begin singing]: The Lady of the Lake, her arm clad in the purest shimmering samite, held aloft Excalibur from the bosom of the water signifying by Divine Providence that I, Arthur, was to carry Excalibur. That is why I am your king!
DENNIS: Listen. Strange women lying in ponds distributing swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.
ARTHUR: Be quiet!
DENNIS: Well you can’t expect to wield supreme executive power just ‘cause some watery tart threw a sword at you!
ARTHUR: Shut up!
DENNIS: I mean, if I went around sayin’ I was an emperor just because some moistened bint had lobbed a scimitar at me they’d put me away!
ARTHUR: Shut up! Will you shut up!2
What of a monarchy, as in Arthur’s case? Does “holding aloft Excalibur” entitle a person to rule over others? Does being born to the previous king?
What of an “anarcho-syndicalist commune,” which the peasant Dennis described? Does rotating authority among peers work? Or is majority rule the right way to decide issues and determine what the law should be?
Or how about what America has (at least in theory): a constitutional republic. Does having a Constitution justify whatever Congress wants to do? Should we submit to whatever the government dictates, merely because we have elections and the so-called “rule of law”?
In the previous chapters, we addressed various forms of law and what types of laws legitimately punish wrongful activity. Once we establish what is wrong, we must then determine who can do something about it—who recognizes these laws, creates them, and enforces them. Put differently, we need to understand what forms of government are acceptable to prohibit and punish wrongdoing.
Think back to the island scenario. Let’s say one of your neighbors decides to impose a monarchy on the rest of you and claims ownership over the island, but then he leaves you alone, doesn’t tax you, and you rarely see him. (Unlikely, right?) Or consider a scenario where all of the island’s inhabitants vote on whether to create a representative democracy and elect a president. This happens, and you’re put in charge—but then you leave everybody alone to go about their business. These forms of government, then, don’t matter as much as what those in government actually do. If you and everybody else adhered to natural law and only punished malum in se actions—violations of natural law—it wouldn’t matter if there was a king or a president. Here’s how Bastiat explains it:
If a nation were founded on this basis [of natural law], it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, non-oppressive, just, and enduring government imaginable—whatever its political form might be.3
Unfortunately, this utopia has to remain only “imaginable,” since the world is littered with governments that aren’t founded on that basis. They don’t leave people alone. They tax. They take. They assume all sorts of new powers and punish an expanding list of malum prohibitum activities.
While many good things can come from legitimate government activity—imprisoning murderers, repelling an invasion, punishing thieves, etc.—the concentration of political power creates many problems as well. Governments of all sizes and shapes have been the instruments of destruction in the lives of their subjects. They too easily turn justice into injustice, violating the very purpose for which they exist. Rather than protecting, they harm.
Dennis the peasant was right: a person should not be able to have power over others because they are given a sword. But is a person entitled to this power for other reasons, such as winning a popularity contest (also known as an election)?
What type of government can have legitimate authority over you?
CREATOR AND CREATURE
Lest you think otherwise, let me make something clear: not everybody is a fan of natural law. One of its critics was a man named Jeremy Bentham, who called it “nonsense upon stilts.”4 Bentham was an eighteenth-century English philosopher and social reformer who believed that actions—and laws—should be evaluated not on their moral implications, but on their consequences. This concept, known as utilitarianism, measures what is right or wrong based on “the greatest happiness of the greatest number” of people. This, he argued, was “the only right and justifiable end of government.”5
In other words, Bentham believed that the purpose of government was to improve the lives of the most people possible—good ends would justify whatever means were used to obtain them. You might wonder, as I do, whether the happiness of the majority of people is a praiseworthy result if it is achieved by hurting the minority of people. If 51% of people in a country would be most happy by taking half of the money and belongings of the other 49%, is there anything wrong with that? If law is not connected to morality, then does it matter if some people are disadvantaged by the law? Some will be peasants and some will be kings and knights—and that’s okay in this way of thinking, as long as the privileged politicians and their friends are happy.
This dangerous idea was further refined by one of Bentham’s students, John Austin, the British legal theorist mentioned earlier who championed positive law. A professor of jurisprudence at the University of London, Austin refined and propagated these ideas even further. How did he do it? Well, how would you do it? If you’re a utilitarian and you wish to govern a society based only on the merits of the outcomes of each law or action, what type of government would you need? Where would the authority come from in such a scheme?
Austin argued that “every political society must have a sovereign… freed from legal restraints.” In other words, the government and its officers should be exempted from any negative legal consequences for their actions. Those in government should not be “constrained to observe [the law] by any legal sanction,” or punishment. But why a separate set of rules for the government versus those who are governed by this group of people? Because if the government had to follow its own rules, Austin wrote, it “would be in a state of subjection,” rather than sovereign, or supreme.6
Surely your mind begins spinning at the thought of letting the government get away with whatever it wants. This sounds like something out of a dystopian nov
el. But Austin was very influential in the decades that followed, and modern governments implement the very thing he championed.
Ever heard of sovereign immunity? It’s the idea that government can do no wrong and cannot be sued by those who have been harmed by its actions. This idea dates back to the early monarchy in England, where kings could not be sued in their own courts. Think of it: these kings did some pretty horrible things, and if their subjects could hold them accountable in court, as one historian said, the monarchs “would have passed [their lives] as defendant,”7 continually fighting off lawsuits. From this immunity developed the idea of rex non potest peccare, meaning “the king can do no wrong.” Initially, this concept referred directly to the individual serving as king, and not to the government per se. Here’s how Blackstone explained it:
Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection. The king can do no wrong….
The king, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.8
Eventually, the idea of personal immunity held by the king was merged into political immunity. It wasn’t just that the king could do no wrong, but that the government in general held the same status. And this idea, which Austin helped refine and popularize, spread to the American colonists—former British subjects themselves. Sovereign immunity persisted through the creation of the Constitution. Alexander Hamilton, writing in Federalist No. 81, said, “It is inherent in the nature of sovereignty, not to be amenable [subject] to the [law]suit of an individual without its consent.”9 James Madison agreed: “It is not in the power of individuals to call any state into court.”10 And John Marshall, the first chief justice of the U.S. Supreme Court, echoed this sentiment: “It is not rational to suppose that the sovereign power should be dragged before a court.”11
Lessons from a Lemonade Stand Page 6