It Is Dangerous to Be Right When the Government Is Wrong (42 page)

As an example, the Supreme Court held in
Gonzales v. Raich
(2005) that Congress's constitutional authorization to regulate interstate commerce also grants it the power to criminalize homegrown medicinal marijuana; that is, marijuana not procured through any commercial transaction. In her dissent, Justice O'Connor noted the impropriety of such a law:

Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.
¹¹

Thus, ultimately the government's criminalization of harmless or merely offensive conduct not only deprives individuals of their natural right to choose private behavior; it also allows the government to acquire more power than was granted to it by the Constitution.

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In sum, the answer to the question posed earlier about NYPD Officer Osvaldo Hernandez is: No. There cannot be a legitimate justification for cases such as Osvaldo Hernandez's. In fact, his story precisely illustrates the evil and tyranny of criminalizing harmless, victimless behavior! We must demand that governments abide by the Natural Law if we are to prevent the government from controlling our lives, aggrandizing power to itself, and at the end of the day, ourselves from sacrificing liberty for convenience.

Private Harm versus Public Harm

We have discussed up to this point the difference between offense and harm, and found that only harms are eligible for criminalization under a governmental scheme that protects natural rights. However, there is an additional requirement which must be satisfied before harm can be criminalized: It must be a harm against the general public, and not just a private individual. Thus, although it should be a crime to steal a car, it is not a crime if your dog urinates on a neighbor's bush, thus killing it. We can therefore say that being a harm is a necessary prerequisite for criminalization, but it is not sufficient. But how can we distinguish between these public and private harms?

Before delving into what constitutes harm against the public, it is helpful to review briefly the difference between crimes and torts. Our legal system can be divided into two principal parts: The civil law and the criminal law. The civil law addresses
torts
and contractual relations: Breaches of a duty owed by one individual to another individual. By duty owed to an individual, it is meant that someone is obligated not to act in a certain way as to a particular person or entity, such as a business. Thus, I owe a duty to you not to ruin your bush by letting my dog urinate on it. When that duty is breached, the harmed individual has what is called a
cause of action
, or the ability to pursue a remedy for that wrong in a court of law. In the particular case of the dog and the bush, the remedy would be monetary compensation equal to the value of the bush that was destroyed, no more and no less.

By contrast, the criminal law involves breaches of duties owed not just to an individual, but to all individuals; we all owe a duty to society not to attack innocent civilians wantonly, for example. When this duty to the general public has been breached, then the general public, in the form of the government, can bring those alleged to have perpetrated the breach to court and pursue not compensation, but actual punishment. This is, if you have ever wondered, why criminal cases have names such as
State v. Rockwell
or
United States v. Rothbard
. By contrast, civil cases have names such as
Chodorov v. Von Mises
or
Napolitano v. Beck
.

In order to understand this difference better, think of a child who recklessly throws a baseball into a neighbor's window, thus causing $200 worth of damage. The neighbor should, of course, be able to recover the $200 to replace the window, and thus be “made whole.” The neighbor has an interest in recovering $200 to undo the harm that has been committed against him, no more and no less. This can be considered the
civil
component of the child's harm. However, because the action was so reckless, the “authority figures” in the child's life (i.e., his parents) may be justified in punishing the child by requiring him to mow the lawn every Saturday for the next four months. Why? Because the entire neighborhood benefits from, and has a legitimate interest in, having the child taught a lesson about responsibility and respect for others' property. This represents the
criminal
component of the child's harm.

Note in particular that this punishment, although arising from the same action of breaking a window, can be considered entirely different from the $200 compensation to the neighbor, as can the reasons for imposing those separate remedial measures upon the child. It would make no sense to require the child, in addition to paying the neighbor $200, also to mow the neighbor's lawn; mowing the lawn is intended to teach the child a lesson, rather than compensate the neighbor for his wrong. If the neighbor could have his lawn mowed in addition to receiving $200, then in effect, he is receiving something he is not entitled to, and would actually become enriched by the whole ordeal. Moreover, it would be equally nonsensical to give the $200 to the child's parents, but not the neighbor; then the parents (i.e., the government) are receiving something they are not entitled to—the value of the window—and the neighbor is left $200 in the hole. Thus, there is a compelling reason to have two separate systems, a civil and a criminal, which serve two very distinct purposes.

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So what then can be considered a mere tort, and what rises to the level of a crime, which can be justifiably punished by the government? That is a question which has vexed legal scholars for as long as there have been two separate systems. To be considered a tort, I would argue that the conduct must be a violation of the Natural Law, and thus an actual harm. The criminal law, however, involves a special breed of violations of the Natural Law, where society itself is justified in punishing the wrongdoer, as opposed to just giving the harmed individual a right to recover damages. Society is justified in punishing a wrongdoer when it has a compelling interest in (1) deterring future crime, (2) rehabilitating the individual, or (3) incapacitating the individual from committing further wrongs against others. Unless at least one of these requirements is convincingly met, then punishment is completely unwarranted, and the government is intermeddling in an essentially private civil matter between two or more persons. Recall that we stated that the purpose of the criminal law is to safeguard our liberties: These requirements ensure that the criminal law is not imposing needless or arbitrary punishment, and is actually serving that one true purpose.

As for deterrence, there must be a need to prevent future harms by imposing penalties which discourage subsequent misconduct. Recall the child who broke his neighbor's window: We can agree that errant children pose a significant risk of doing further property damage, and thus the entire neighborhood is justified in discouraging them by imposing a penalty. When the child learns that he will be forced to mow his parents' lawn every Saturday for four months, he is much less likely to break other windows in the future. Similarly, when a thief steals and resells a car, if he was only required to repay the market value of the stolen car, then he would be no worse off as a result of having committed the crime, and thus have no incentive not to continue to steal cars. Moreover, provided he can resell each car before he is caught, and assuming he will only be caught a fraction of the time, he will actually be making a net profit off of a criminal career. Thus, there it is a social necessity that the government punish him in order to deter future theft.

As for rehabilitation, requiring the child to mow lawns can not only deter future crime, but also teach the child the error of his ways. By having his Saturdays “stolen” from him, he can experience for himself what it is like to be the victim of crime. Thus, by being brought to justice, he is more likely to grow up to become a healthy individual who will not continue to destroy property. Michael S. Moore, a professor of law at the University of Illinois, notes that the proper ideal of rehabilitation is to “make criminals safe to return to the streets. This sort of rehabilitative theory justifies punishment, not by appeal to how much better off criminals will be at the end of the process, but rather by how much better off all of us will be if ‘treatment' is completed because the streets will be much safer.”
¹²

It is important to note that Professor Moore distinguishes between rehabilitation for the criminal's sake and for our sake, as a society. If society is determining what is best for the criminal himself, that involves just the sort of legal paternalism which we have discussed and rejected earlier in this chapter. By contrast, only rehabilitation for the sake of society is proper, and squares with the entire purpose of the criminal law. And in any event, if helping individuals to become self-sufficient members of society for their own sake is our goal, why is it that we would choose to spend scarce resources on rehabilitating car thieves instead of autistic children? Those who argue for this justification of punishment must argue why criminals are somehow more deserving of our help than the disenfranchised.

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Finally, incarceration of one who gives up his own natural rights serves the natural rights of all by keeping aggressors off the streets, where they can continue to inflict future harm. By contrast, unless it is convincing that they will continue to do harm, there can be no justification for criminalization. If I am required to compensate my neighbor for the lost value of his bush, I will almost certainly not allow it to happen again, and there can be no justification for incapacitating me or my dog, Gina.

Thus, unless at least one of these requirements is met, there cannot be a moral justification for government punishing an individual for wrongdoing, and thus, there is no concurrent justification for criminalization. It is absolutely essential to the ideal of limited government, and the pursuit of freedom, to limit the criminal law to only what is necessary to safeguard our liberties, and that means only prosecuting those who intentionally cause real harm by violating another's natural rights without his consent and without moral justification.

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Conclusion

In sum, although the ostensible purpose of the criminal law might be to protect us from harm, too much prosecution is a far greater evil than too much crime. “Why?” you might ask. If you fear crime, then you are free to help yourself by locking your doors and buying a gun. Every sound adult human possesses the natural right to self-defense and all the intelligence and strength needed to exercise that right. If, by contrast, you fear unlawful prosecution, there is no feasible way to resist the coercive power of the state. How long will it be until the state's long, powerful arm eventually reaches you? How long was it until an unstoppable tide of federal government evicted Native Americans from their homelands? How long was it until the government could command how much wheat you grow in your backyard?
It is dangerous to be right when the government is wrong
.

No, my reader, the government cannot be constrained, and liberty preserved, by pistols and door locks alone. It is only with laws that we can ensure enduring freedom and the enforceability of natural rights. The Founders recognized this inescapable truth. Certainly, they fought a long and bloody war to escape tyranny. But what did they leave us when the war had been fought, the battles won, and the enemy had retreated from our shores? They left us with a
Constitution—
a set of laws binding the government based upon the Natural Law—and a hope that it would be honored in perpetuity.

Sadly, since the day of its ratification that Constitution has been battered and worn down to its very bones—a mere skeleton of the liberty our Founders promised us. But, my reader, all the injustice in the world can never destroy the hope of restoring freedom, just as all the darkness in the world can never extinguish the flame in our hearts.

The Founders' dream lives in each and every human being, as does the power to turn it into a reality. Although it is dangerous to be right when the government is wrong, that danger is imperceptible when compared to the danger of languishing for the remainder of our lives in the physical and spiritual chains of tyrants.

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Chapter 15
Ignoring Stupidity:
The Right to Reject the State

Since the government derives its powers from the consent of the governed, the final, and capstone natural right, is the right not to consent to any government. When the state has assaulted freedom and offered no accountability, are we simply to relinquish any and all interest in the matter as a lost cause? No, my reader, we must do just as the colonists did in 1776: Alter or abolish the government and institute a new system of laws which allows us to pursue our natural yearnings.

If the government itself came about in America by seceding from Great Britain, if the government itself exists only because free persons have freely given some of their natural freedoms to it, if the sole moral underpinning of the government in America is the free consent of the governed, what becomes of the government when that consent is withdrawn?

This is not the lesson or the argument of the Civil War, though lessons there are. This is the concept of a social compact. Since the federal government came about by the states freely ceding limited powers to it, why can't they take those powers back? Since a dozen counties in western Virginia left that state and formed a new one during the Civil War, what is to prevent that from happening elsewhere in America today? And if I can no longer consent to the government that lies, cheats, steals, and kills in my name, why can I simply not withhold my consent and ignore it?