The Tyranny of Good Intentions

1. The Rights of Englishmen: Foundations of American Liberty

"The Rights of Englishmen are the best defense against tyranny and injustice that humans have been able to muster."

Historical roots. The Rights of Englishmen, developed over centuries of English legal tradition, form the bedrock of American civil liberties. These rights include:

• Presumption of innocence
• Protection against self-incrimination
• Right to a fair and speedy trial
• Prohibition of cruel and unusual punishment
• Protection against unreasonable searches and seizures

Constitutional embodiment. The Founding Fathers incorporated these rights into the U.S. Constitution and Bill of Rights, recognizing their crucial role in safeguarding individual liberty against government overreach. This legal inheritance distinguishes the Anglo-American legal tradition from other systems where law serves as a tool of government power rather than a shield for citizens.

2. Erosion of Legal Protections: From Shield to Weapon

"Today Americans who are not members of the privileged class of law enforcement face, in the words of House Judiciary Committee chairman Henry Hyde (R-Illinois), 'endless possibilities to be caught in the snare of government forfeiture.'"

Benthamite influence. Jeremy Bentham's utilitarian philosophy, which prioritizes the "greatest good for the greatest number" over individual rights, has gradually eroded the Rights of Englishmen in American law. This shift has transformed law from a shield protecting citizens to a weapon wielded by the government.

Consequences:

• Expansion of government power at the expense of individual liberty
• Increased vulnerability of citizens to arbitrary prosecution
• Diminished accountability of law enforcement and prosecutors

The erosion of these legal protections has led to a system where even innocent people can find themselves ensnared in legal troubles, reminiscent of the plight of citizens in authoritarian regimes.

3. The Demise of "No Crime Without Intent"

"To this day, no evidence exists that Milken ever committed any crimes or engaged in any conduct that had ever before been considered criminal."

Strict liability. The principle that there can be no crime without intent (mens rea) has been significantly weakened in American law. This erosion allows prosecutors to bring charges for actions that were not intended to be criminal or even known to be illegal.

Examples:

• Environmental regulations leading to criminal charges for accidents
• Financial crimes prosecuted without proof of criminal intent
• Regulatory violations treated as criminal offenses

This shift has made it easier for prosecutors to obtain convictions and has exposed ordinary citizens to the risk of criminal prosecution for unintentional acts or technical violations.

4. Retroactive Law: Undermining Constitutional Safeguards

"Superfund has made it economically dangerous to own land, finance its purchase, or insure assets that can be linked in any way to waste sites."

Constitutional prohibition. The U.S. Constitution explicitly forbids ex post facto laws, which punish actions that were legal when committed. However, this protection has been eroded, particularly in civil cases.

Superfund example. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as Superfund, exemplifies retroactive liability:

• Holds parties responsible for cleanup costs of waste sites, even if disposal was legal at the time
• Applies liability retroactively, sometimes decades into the past
• Creates uncertainty and risk for property owners and businesses

This retroactive application of law undermines the principle of fair notice and can lead to unjust outcomes, as individuals and businesses are held accountable for actions that were not illegal when performed.

5. Plea Bargaining: Modern-Day Torture in the Justice System

"The parallels between the modern American plea bargaining system and the ancient system of judicial torture are many and chilling."

Coercive nature. Plea bargaining, which resolves 90-95% of criminal cases in the U.S., functions as a form of psychological coercion akin to torture:

• Prosecutors stack charges to increase potential sentences
• Defendants face pressure to plead guilty to avoid harsh punishments
• Innocent people may admit guilt to avoid the risks of trial

Systemic issues:

• Undermines the right to trial by jury
• Shifts power from judges to prosecutors
• Prioritizes efficiency over truth-seeking

This system has transformed the criminal justice process from a search for truth into a negotiation, often at the expense of justice and individual rights.

6. Asset Forfeiture: Legalized Theft by Law Enforcement

"Today the forfeiture provision, which targeted drug trafficking, covers 140 other federal criminal offenses."

Expansion of power. Asset forfeiture laws, originally intended to combat drug trafficking, have grown into a tool for law enforcement to seize property with minimal due process:

• Property can be seized based on mere suspicion of criminal activity
• Owners must prove their innocence to reclaim property
• Law enforcement agencies directly benefit from seized assets

Perverse incentives:

• Encourages "policing for profit"
• Targets cash and valuable property over actual criminal activity
• Disproportionately affects low-income individuals who can't afford legal challenges

This practice has effectively revived the medieval concept of "deodand," where inanimate objects could be held guilty of crimes, and undermines the constitutional protection of property rights.

7. Prosecutorial Overreach: Ambition Over Justice

"What happens, for example, when corrupt prosecutors, who gained name recognition by using any means to convict a 'high-profile' target, capitalize on their fame and enter politics or prestigious law firms?"

Career advancement. Many prosecutors prioritize convictions and high-profile cases over justice, using aggressive tactics to build their reputations:

• Overcharging to pressure plea bargains
• Withholding exculpatory evidence
• Using media to influence public opinion and potential jurors

Systemic issues:

• Lack of accountability for prosecutorial misconduct
• Erosion of the presumption of innocence
• Disproportionate power in the hands of prosecutors

This focus on "winning" cases rather than seeking truth has led to numerous wrongful convictions and undermined public trust in the justice system.

8. Delegation of Legislative Power: The Rise of Unaccountable Bureaucracy

"We no longer have a constitutional order, a separation of powers, self-rule, or a rule of law when the Supreme Court permits a federal bureaucrat to usurp powers explicitly prohibited in statutory law in order to make prohibited actions the law of the land."

Administrative state. The delegation of lawmaking power from Congress to executive agencies has created a vast, unaccountable bureaucracy:

• Agencies create regulations with the force of law
• Limited congressional oversight of regulatory actions
• Courts often defer to agency interpretations of statutes

Constitutional concerns:

• Violates the separation of powers
• Undermines democratic accountability
• Creates a "fourth branch" of government not envisioned by the Constitution

This shift has concentrated power in the executive branch and made it difficult for citizens to navigate an ever-growing body of regulations and potential criminal liability.

9. The War on Terror: A Constitutional Crisis

"The Bush administration claimed and exercised the power to hold indefinitely anyone so designated without access to legal representation."

Executive overreach. In the name of national security, the government has claimed unprecedented powers:

• Indefinite detention without charge
• Warrantless surveillance
• Torture and "enhanced interrogation techniques"

Erosion of rights:

• Habeas corpus suspended for "enemy combatants"
• Due process rights curtailed
• Privacy protections weakened

These measures, justified as temporary responses to terrorism, have become entrenched, creating a permanent state of exception that threatens core constitutional protections.

10. Reclaiming Liberty: The Need for an Intellectual Rebirth

"Without an intellectual rebirth, a revival of constitutionalism, there is no hope for American democracy."

Cultural shift. Reclaiming lost liberties requires a renewed appreciation for the principles underlying the Rights of Englishmen:

• Education on constitutional principles and history
• Skepticism towards claims of government necessity
• Civic engagement to hold officials accountable

Legal reforms:

• Strengthening mens rea requirements in criminal law
• Limiting asset forfeiture and plea bargaining
• Restoring congressional authority over lawmaking

Ultimately, preserving liberty requires an informed and vigilant citizenry committed to the principles of limited government and individual rights.

Last updated: July 25, 2024