It Is Dangerous to Be Right When the Government Is Wrong (34 page)

The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.
⁴

196

In other words, in light of the content of the newspaper's articles, the Chief Justice all but commanded the jury to return a guilty verdict. More fundamentally, however, these instructions highlight not just the potential biases of judges, but how juries will oftentimes be more faithful to the Natural Law and its principles of justice, rather than simply whatever is customary and dictated by precedent.

This crucial protection provided by juries has parallels in other political institutions as well, what I will collectively refer to as
tripartite nullification
. In addition to jury nullification of state prosecutors, the states retained the power to nullify the unconstitutional behavior of the federal government. Under this concept, states are obligated to refrain from enforcing unconstitutional federal laws. Third, individuals should have the right to withdraw their consent to state and local governments, in effect nullifying governmental actions taken in violation of their natural rights. This tripartite nullification should sound familiar: It is, in essence, checks and balances as between federal, state, and local governments, and the people themselves. What would happen if checks and balances were wholly eliminated at the federal level of government, that is, the Supreme Court could no longer strike down laws as unconstitutional, the president himself could declare war, and Congress could pass any legislation without fear of an executive veto or a judicial invalidation? Government would expand even further than it has already. Tripartite nullification is just as essential to keeping government within its proper scope. Sadly, however, it has been wholly ignored.

As an example, consider how the crucial right to jury trials in criminal proceedings has come under attack. Currently, defendants in the juvenile justice system are not given a constitutional right to a jury trial. Nonetheless, findings of guilt as a juvenile can be used to elevate sentences for later convictions as an adult. This is a particularly troubling concern given the recent proliferation of three-strikes laws, which provide for drastically elevated sentences if the defendant has a past criminal record. Thus, those who received prior convictions in juvenile courts without a jury are to be punished the same as those who received those prior convictions in adult criminal courts. Lest one dismiss this difference as trivial, it is worth noting that racial and socioeconomic biases have been well documented amongst juvenile court judges, thus creating a risk that a child discriminated against in juvenile court could receive fifteen more years in prison later in life than if he had access to a jury and all of its crucial protections.
⁵

197

The history of American freedom is, in no small measure, the history of procedure.

—J
USTICE
F
ELIX
F
RANKFURTER

Sadly, we live in a society today that has forgotten the lessons of the Zenger trial, and decries the granting of due process to certain persons more than their deprivation to others. Many question the principles espoused in this chapter by challenging: Why is it that we have to give “terrorists” the same rights that upstanding American citizens enjoy? Why should “murderers” receive the dignity of a trial and a jury? Moreover, this stance so often dovetails with both American exceptionalism and legal Positivism. Here is how this perverse argument goes: Because the government grants us our rights, and we as a people are created superior to others, then it follows that we as a people are to enjoy greater rights than others. Similarly, we are not wrong to transgress against individuals born in other countries.

This line of argumentation should however sound shockingly familiar: It is the ideological justification for the Third Reich. It also conflicts with moral universalism, the philosophy that all humans are subject to the same moral standards. Thus, if it is wrong for a group of people to be aggressors against us, it is wrong for us to be aggressors against them, and similarly, if it is right for us to receive certain procedural protections, then it is also right for all people to receive those protections. The source of moral universalism is the Natural Law: Because we are endowed with inalienable rights by virtue of being human, then all humans are endowed with those rights, and must be treated equally, irrespective of the place of their birth or what the government says they have done. The modern-day empire which we have fashioned, meddling as it does in the affairs of foreign countries, violates moral universalism in every way possible and predictably leaves us and our children at home with a bloated, broken system.
⁶

Millennia of history have taught us that tyranny is the inevitable consequence of assigning justice to the discretion of government officials. To say that alleged terrorists shouldn't enjoy the same procedural rights as Americans is to place our full and abiding trust in the government's ability to determine who is guilty and who is not. Anyone who espouses the prudence of such a policy should know the story of Mohammed Akhtiar, an Afghan citizen who was mistaken for a terrorist and detained in Guantanamo Bay for three years. Ironically, he was maliciously abused because he supported America and rejected the teachings of hatred; his tormentors were not the U.S. military, but his fellow inmates.

198

But more fundamentally, how can we allow the clear intent of the Founders and the struggles of Zenger to be cast aside by the simple assertion that “we are fighting an unconventional war”? Aren't such claims of public necessity always the excuse? Why is now any different? A quick examination of history will show that these same words have been spoken in nearly identical language, by nearly every government for hundreds of years. Although the war might be unconventional, the claim that it justifies suppression of procedural rights is anything but.

Some may contend, however, that they are not complicit in suppressing due process because they trust the government, but because they have a “gut feeling” that the suspect is in fact guilty. But if we are capable of intuiting guilt without the rigors of the judicial system, then why would we ever need procedural rules? It is precisely because human intuition and judgment have proven over time to be insufficient that these rules of procedure were devised.

Moreover, if we genuinely prefer that innocents remain in prison (and believe me, they do) than actual terrorists go free, then the issue becomes one of sacrificing liberty to security. To do so in the context of procedural due process is even more outrageous than in other contexts: You are giving up someone else's liberty for your own security. How else shall we define tyranny of the majority? It is because of the manifest injustice of sacrificing another's liberty for greater security that William Blackstone believed it “better that ten guilty persons escape than that one innocent suffer.” And even if we as a people are still prepared to deprive others of their rights and impugn the role of justice in our society, we must ask: How long will it be until it is you or I who is sacrificed in an effort to keep our neighbors more secure?

199

Conclusion

Robert Bolt's question to us in
A Man for All Seasons
, as the individuals who will ultimately shape government policy:

What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man's laws, not God's, and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety's sake!

No, my readers, there is no security in such policies; only tyranny, oppression, and the death of liberty. As Justice Felix Frankfurter once said, “It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” It is at precisely times like these that we must each decide for ourselves: Are we to secure our liberties, or cast them aside?

201

Chapter 12
A Dime Isn't Worth a Penny Anymore:
The Right to Sound Money

The evils of the Federal Reserve System (the Fed) run so deep that its proponents understand its operations must take place in full secrecy. Murray N. Rothbard once said this about the Fed:

[T]here is a federal agency that tops the others in secrecy by a country mile. The Federal Reserve System is accountable to no one; it has no budget; it is subject to no audit; and no Congressional committee knows of, or can truly supervise, its operations. The Federal Reserve, virtually in total control of the nation's vital monetary system, is accountable to nobody—and this strange situation, if acknowledged at all, is invariably trumpeted as a virtue.
¹

This fact, in tandem with the current financial crisis, has recently prompted calls for transparency of this system as a means to bring about a realization of all it does. Congressman Ron Paul (R-Texas), for example, has authored a bill to audit the Fed; a bill that enjoyed majorities in both houses of Congress, yet never became law. What is the purpose behind this push for transparency? The belief is that once the American people become aware of what these central bankers are clandestinely doing with our hard-earned money, the people will demand an end to the Fed.

Supporters of the Fed maintain that secrecy is the only way the system can achieve its twin goals of “maximizing full employment” and “stabilizing the currency.” If the system became politicized and open to public criticism, so the argument goes, it would not be able to achieve those two goals. Yet, since the institution of the secret Federal Reserve in 1913, the U.S. dollar has lost about 93 percent of its value, and the U.S. economy has seen countless boom-and-bust cycles that have destroyed private wealth and caused massive unemployment. Moreover, as we are currently witnessing, the temptation to spend through crises, as is facilitated by the Federal Reserve System, is too great for most politicians to resist.

202

The Founders and drafters of the Constitution understood this danger, having witnessed it when the unsound Continental (the predecessor to the dollar, and basis of the phrase “not worth a Continental”) fell victim to hyperinflation in the early days of the nation. Accordingly, the Constitution made clear that only gold and silver could be used as legal tender. Nonetheless, what should have ended with a simple question of constitutional interpretation has grown into a massive system which has handicapped the ability of individuals to exercise their natural right to seek prosperity. As we shall see, the Fed, cloaked in its secrecy and esotericism, has offended the Natural Law as surely as any government agency we have yet witnessed.

Money Does Not Grow on Trees

This system of secrecy, conspiracy, and fraud naturally had its origins in secrecy, conspiracy, and fraud. To understand truly and appreciate fully why this system is so dangerous and unstable, we must understand where money comes from, how it led to the earliest banking systems, and how government management of it has caused economic chaos.

When human beings first started trading goods and forming societies, the method of trade was direct exchange, or
barter
. Persons who wished to engage in trade had to come across a double coincidence of wants; if you produced apples and wanted oranges, you had to find someone who produced oranges and wanted apples. This system was obviously cumbersome and inefficient. What happens if the orange farmer did not want apples? Then the apple farmer was out of luck. Also, it is very difficult for producers to calculate their profits, how well they were engaging in trade, and how much each good was actually worth. Moreover, apples only stay fresh for a few weeks and are only produced at certain times of the year, so the apple farmer is forced to flood the market with all of his excess apples. Apples are, in other words, a poor store of economic value.

203

Gold Is the Gold Standard of Currencies

Humans responded to these inefficiencies by using goods that were in very high demand, durable, easily divisible, available in large quantities, and hard to produce (or counterfeit) as a universal medium of exchange, or a currency. In this system, the producer trades not for goods with the immediate intention of consuming them, but with the intention of trading them for other goods which he may consume at a later time. To use a simple example, consider the use of cigarettes as a medium of exchange amongst inmates in prisons. Not every prisoner who collects cigarettes smokes them, but the prison population's demand for cigarettes is so high that they can always be traded for practically anything available within the prison's walls.

Over time, the best mediums of exchange became gold and silver. Both of these metals were attractive because they have always had a high value-to-weight ratio, are very durable, are difficult to counterfeit, and are easily divisible. Also, neither metal could be easily produced, since mining them was and is a slow process. Throughout history individuals remained calmly assured that the two metals' value would remain stable if they wished to save their profits for future consumption, rather than consume them all at once.