Sunday, September 19, 2010


Former Reagan administration attorney general Ed Meese has a great piece in Wednesday's Washington Times on the expansion of laws, and the erosion of the Constitution in the past several decades:

Another sign that we have lost our sense of the Constitution lies in the phenomenon of "overcriminalization." Put simply, government is making too many criminal laws, creating traps for people who are doing their best to be law-abiding citizens. Consider: The Constitution itself identifies only three federal crimes - piracy, counterfeiting, and treason.

When the First Congress enacted the original Crimes Act in 1790, it stipulated only 17 federal crimes. Today, Congress own research service can't even count all the federal crimes on the books. Our best estimate is that the federal code now delineates more than 4,500 federal crimes. And federal regulations create tens of thousands more. Our Founding Fathers would recognize relatively few of these offenses as crimes.

At the time of the founding, almost all criminal law punished conduct that everyone would recognize as wrongful - offenses like murder, theft, and burglary. And virtually all crimes required proof that the accused had acted with a "guilty mind" - that is, with the intent to do a wrongful act. My, how things have changed.

Today, the vast majority of the crimes are regulatory offenses. They involve conduct that is not inherently wrong but has been made criminal only because an elite legislature - or unelected bureaucracy - has decreed it to be so.

To make enforcement of these new social norms easier, legislatures have often jettisoned the "guilty mind" requirement. As a result, people may be punished with jail time for doing things they had no idea were illegal, much less criminal...

...Hence, a 12-year old girl is arrested for eating a French fry in the Washington, D.C., Metro system. A 63-year old grandmother in Palo Alto, Calif., is arrested for failing to trim her hedges in the "officially approved manner." Four FBI agents, in SWAT gear and armed with automatic rifles, arrest an Alaskan inventor for shipping scientific material without a federally mandated sticker on the package. A retired orchid grower spends 17 months in jail for importing orchids without the proper paperwork.

As the list of criminal acts expands, it becomes harder for the average American to get through the day without unknowingly committing a crime. This situation creates an even more insidious danger. If everyone is potentially a criminal, then the government and its employees have vast powers to decide which people to charge. With so wide a scope of possible criminal charges, we now face a situation where little but the discretion of the government determines who goes to jail and who goes free.

In other words, you'd better not piss off government officials too much.

Meese doesn't use the term, but probably a majority of the federal crimes could genuinely be described as "victimless". I don't generally use that term to describe prohibited activities such as drug use and prostitution, because there's usually some element of coercion involved.

But it's a strenuous exercise in justification to claim that anyone is harmed by the prescription use of medications that have been found to work in Europe (but aren't yet FDA-approved), or by compensation being paid to organ donors or their families, or the installation of a toilet which uses more than 1.6 gallons of water in each flush.
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