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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.

by
Robert Zubrin

Bio

October 20, 2011 - 12:20 am

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.

We need to take the war to the enemy by pushing through a constitutional amendment to disarm the bureaucracy and limit its power. No innovation of legal principles is required to do this. Rather, what is needed is a forceful reassertion of the rights of free men as defined by English common law. At the core of this is the principle that, since the government exists to protect the life, liberty, and property of innocent people, and not to punish them, it has no business prosecuting them. Thus mens rea must be established, not as a mere guideline, but as part of the supreme law of the land.

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.

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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