English common law contains a tradition, known as mens rea — Latin for “a guilty mind” — which is intended to protect people from prosecution for unintentional offenses. According to the doctrine of mens rea, if you did not knowingly commit a crime, then you are not a criminal, and should not be treated like one.
Every day brings us stories of citizens being prosecuted for actions no reasonable person could have suspected were crimes. Some of these events, such as a guitar maker being subject to an armed Gestapo raid by commandos in the employ of the federal Fish and Wildlife Service (!), would make hilarious material for a surreal novel or film satirizing insane bureaucracy. Unfortunately, however, these cases are real, and not fiction, and the reality they exemplify is dangerous in the extreme.
According to a recent Wall Street Journal article which detailed many such exemplary abuses, the roster of federal crimes, which stood at 20 in the original criminal act of 1790, has now grown to at least 4500 statutory offenses, with unknown thousands of additional grounds for criminal prosecution contained within obscure regulations generated in ever burgeoning amounts by government agencies.
It has thus become impossible for an ordinary citizen to know what is legal and what is not. In fact, as anyone who has ever tried to assure his or her legal safety by asking for guidance from the IRS or EPA knows, the agencies themselves don’t have a clue, and are prompt to disclaim any immunity to prosecution for actions based upon their own advice.
This is an unacceptable situation. A government of secret laws is inimical to both prosperity and liberty. It is very difficult to launch a new enterprise if one cannot be sure that it will be allowed to operate legally. Thus the infant sources of economic growth and technological progress are being strangled, to the enormous detriment of the nation. This threatens not only our society’s vitality but also our very survival. In some areas — such as energy development — bureaucracy has hamstrung our ability to meet critical national security needs.
Furthermore, freedom itself is at risk, since no private person can be safe and secure when a situation prevails in which anyone may face jail for entirely innocent conduct. The Gibson guitar executives were arrested at gunpoint for allegedly using an illegal type of wood in their instruments. How about you? Is your furniture composed of legal wood, or illegal wood? And if it was legal once, are you sure it still is, or will be tomorrow?
Unfortunately, in recent years, many judges have chosen to disregard mens rea as an essential principle of basic justice. Instead, to the great convenience of the growing bureaucratic power, they have elected to declare that ignorance of the law — no matter how unknowable — is no excuse, and trampling on common law, proceed to commit one legal atrocity after another.
Such outrageous judgments have sometimes excited considerable comment, but be that as it may, negative press reports have done little to stem the tide. In a few cases (usually after ruining the innocent), they have been reversed on appeal. But it is clear that as citizens, we cannot protect ourselves successfully against this expanding bureaucratic abuse by each fighting his own case alone against the federal Leviathan. Clearly, a broader, deeper, and stronger type of defense is necessary.