An Essay on the State of Government

It is near certain that the authors of America’s Declaration of Independence, the Constitution and its Bill of Rights could not have anticipated a world in which the average American paid a quarter of their annual income to the government in taxes, a government that secretly monitors our personal communications, collects and stores vast quantities of information about its citizens, and a government in which the concept of privacy is fast approaching extinction. The idea that individual citizens would require government approval in the form of licensing and permits in order to go about their daily lives; a license to travel upon the public highways, a permit to build upon their own private land, a permit to carry a firearm for one’s personal defense, a license to sell fresh farm products at a local market, a license to fish and to hunt, a permit to distill spirits even for personal use, and so many other similar government intrusions into our personal lives would have been unconscionable to the men and women in 1783 (the end of the American Revolutionary War)  who had just fought a war to gain their freedom and independence from government oppression.     

What the founders of this great Republic did anticipate is that governments, no matter how powerful, will always hunger for more power and that power inevitably corrupts. For this reason, the U.S. Constitution was signed on September 17, 1787 and a Bill of Rights was adopted as part of the U.S. Constitution on December 15, 1791.  The Constitution and the Bill of Rights enumerated the rights that the Founding Fathers saw as the natural and God-given rights of man, and it restricted the power of the Federal government to infringe, limit, or interfere in those rights except in the very limited circumstances prescribed by a Constitution.

Unfortunately, the limited government envisioned by the Founding Fathers, and the individual freedoms held to be the God-given right of every American citizen are seldom recognized in practice today. According to a 2015 Gallup Poll, 75% of Americans see widespread corruption in their government (Gallup 2015). It is not just a belief that the government is corrupt, but an actual fear of this corruption by the majority of Americans that raises the greatest concern. According to the Chapman University Survey of American Fears: “Of the 89 potential fears the survey asked about, the one that the highest share of Americans said they were either "afraid" or "very afraid" of was federal government corruption. It was also the only fear that a majority of Americans said they shared.” (Rampell 2015) The Pew Research Center conducted a study of public trust in government between 1958 and 2014 and found that American’s trust of their government was at an all-time low in 2014 (Pew Research Center 2014). If the conclusions of these studies are true, the American government has become morass of corruption, with the majority of American citizens lacking trust in their elected officials and fearing their own government.  

We live in a country that has passed so many laws that even our own government cannot count them. According to the American Bar Association, more than 40% of all criminal laws passed since the Civil War (1861-1896) have been passed since 1970, and these new criminal laws are not focused on violent crimes such as murder and rape but are instead focused on nuance regulatory structures (Shepherd 2013).  We are protected by a government that regulates our every act and invades our personal privacy so that it can assure us that we are not the enemy that it is protecting us from. As Louisiana State University law professor John Baker was quoted in the Wall Street Journal saying “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” (Fields 2011) 

"Over criminalization is a serious problem that has led to questionable prosecutions and injures to the public interest. Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws. In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured. Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress—itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success. If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary." (Mukasey 2015)

We live in a world of laws, rules, policies, and regulations. It is these laws, rules, policies, and regulations that help societies to function smoothly and to operate with some degree of regularity and efficiency. They reduce some of the friction between people living in close proximity and help to promote safety and order in our communities. But there is a problem. That problem is that there are so many laws, rules, policies, and regulations that it is almost impossible to exist without violating something on a daily basis. We have reached a point where everything has been criminalized.     

OK, so it’s at least theoretically possible that we violate some obscure law on a daily basis, but are people really being arrested for it? According to the Sentencing Project (2015) “between 70 million and 100 million - or as many as one in three Americans - have some type of criminal record”. A study conducted by the University of Georgia found that approximately 8 percent of the American adult population has some type of a felony conviction, and 3 percent of the population has served some time in prison. (Flurry October 1, 2017) The United States has one of the highest incarceration rates in the world.

Do we really have almost one-third of our population being convicted of some crime before an impartial judge and a jury of their peers? Well, no not really. According to the New York Times "97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence." (Goode 2012) So, are the police arresting the right person in almost every case? If 94 to 97 percent of defendants plead guilty in exchange for some lesser sentence (a plea bargain) our nation’s police forces must be doing an amazing job. Or perhaps there is another reason that people are willing to take a plea bargain instead of having their day in court? 

In his lecture, Don’t Talk to Police, Regent Law School Professor James Duane (2008) stated:

“Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. These laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies under congressional authorization. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are” nearly 10,000.” (Marlinspike 2013)

Professor Duane points out in his lecture that anything that you say to the police can be used against you in court, but that absolutely nothing that you say to the police can possibly help you. A person who is completely innocent of any crime can make a statement that may appear incriminating in the context of a police report. And while no honest police officer wants to see a truly innocent person convicted; police officers are human, they make mistakes, have personal biases, and may become so focused on building a case against the person they know, that they fail to pursue a case against the unknown, but actual offender.

Writing in Rubin v. United States 524 U.S. 1301 (1998) United States Supreme Court Justice Stephen Breyer stated:

“The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.”

This is perhaps one of the best reason why one should never speak to the police. A particular (and in fact innocent) set of statements can result in a person being charged for an offense never committed. And once charged the prosecutor will of course seek a conviction, a conviction almost always obtained through plea bargaining.

In its 2018 talking points that Heritage Foundation stated:

“The Framers of our Constitution were concerned that an expansive and voluminous criminal code was a threat to the liberty they had just won. The original federal criminal code was limited to what was necessary to get the new government started. The first federal criminal statutes outlawed approximately 30 crimes, and each one carefully supported the needs of the new enterprise. Today, Congress enacts criminal laws not to protect important national interests of a modern nation, but to score political points with an uninformed electorate that has been led to believe that outlawing more and more conduct or increasing the penalty for conduct that is already a crime somehow solves a crime problem.” (Heritage Foundation 2018)

In ‘The Economist’ we read:

“There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (i.e., he must or should know that he is doing wrong) has been weakened or erased. The founders viewed the criminal sanction as a last resort, reserved for serious offences, clearly defined, so ordinary citizens would know whether they were violating the law. Yet over the last 40 years, an unholy alliance of big-business-hating liberals and tough-on-crime conservatives has made criminalization the first line of attack—a way to demonstrate seriousness about the social problem of the month, whether it's corporate scandals or e-mail spam...”  (Economist 2010)

The idea of over criminalization is nothing new. Whether we look at Justice Breyer’s comments in 1998, the Heritage Foundation’s talking points in 2018, or articles in today’s news we find the same thing. There is such a morass of criminal laws and administrative regulations that it is nearly impossible to exist in today’s society without violating something that could result in a criminal conviction, monetary fines, and prison time.

“We are facing a serious problem in America. We are forgetting what it is like to be free. Where once our Founding Fathers fought a war to throw off the shackles of a true “Nanny State,” we now run from anything that fails to display a “Government Approved” stamp. This fear is corrupting our very appreciation for freedom. Rather than risk offending someone, or dare stoke a passionate response, communities from New York to Texas and California deal with even the slightest perceived disagreement by curbing individual rights. Restricting individual rights has become the default posture by governments at all levels of our society.” (Barr 2014)