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A Constitutional Amendment to Enforce the Protections of Mens Rea

A government of secret laws is inimical to both prosperity and liberty.

Robert Zubrin


October 20, 2011 - 12:20 am
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With this in mind, I propose that a constitutional amendment be drafted along the lines of the resolution below:

The ancient principle of mens rea being fundamental to justice in a free society, it is hereby enacted that no person shall be subject to execution, exile, beating, mutilation, imprisonment, deprivation of rights, ruinous loss of property, or any other such extreme penalties except for crimes involving violence to persons or property, fraud, perjury, counterfeiting, smuggling, treason, conspiracy to commit same, or such other actions as are judged to be generally known and understood to be criminal by a jury of his peers.

And whereas it has been shown that it is the custom of agencies of government when acting without constraint to enact innumerable rules into law too intricate and obscure for human understanding, thereby endangering the citizenry with penalties accruing to unknown laws and regulations, it is hereby enacted that no such regulations shall have force of law until reviewed and approved by majorities of both houses of Congress, and furthermore, no person shall be subject to any arrests, seizures, or other penalties associated with such regulations until and unless he has been warned by due legal process that he is in violation and given reasonable opportunity to either cease and desist from such conduct or to contest its illegality in a court of law.

The first paragraph reinforces mens rea by explicitly defining those crimes that a defendant could be expected to know as such, thereby limiting the prosecutorial argument dismissing ignorance of law as a defense to only such legitimate cases. Furthermore, it limits the state’s ability to inflict punishments beyond mild fines to only such cases, thereby pulling the sharpest and most terrifying fangs from the bureaucracy’s teeth. The second paragraph constrains the bureaucracy further, by subjecting its regulations to congressional review, and by forcing it to provide warning and engage in due process before taking action against anyone.

I’m an engineer, not a legal scholar, so I’m sure there are grounds for improvement in the text presented. I hope, however, that it can serve as a starting point for discussion. Freedom can only survive under limited government. Today, the real government is the bureaucracy, and it is running amok. We need to draw the line. An amendment is called for.

Politics is said to be the art of the possible. But does anyone imagine that there is any significant grassroots constituency in the United States for the continued expansion of bureaucratic tyranny? No, even the members of the bureaucracy hate it, since, in their private capacities, each and every one of them suffer under its iron heel as well. As for the American people at large, rich and poor, left, right, and center alike, they are fed up. Those statesmen who stand up for freedom on this issue will receive universal support. Those who cast their lot with the bureaucracy will suffer the consequences. So, dear Republicans, this is your path to victory. Take a stand for liberty, and win.

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Dr. Robert Zubrin is president of Pioneer Astronautics, a Senior Fellow with the Center for Security Policy, and the author of "Energy Victory: Winning the War on Terror by Breaking Free of Oil". His newest book, "Merchants of Despair: Radical Environmentalists, Criminal Pseudo-Scientists, and the Fatal Cult of Antihumanism" has just been published by Encounter Books.
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