A Constitutional Amendment to Enforce the Protections of Mens Rea
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.
If we followed the rest of the US Constitution, which severely limits the powers of government, we wouldn’t even be having this discussion. The vast majority of the federal bureaucracies wouldn’t even exist, let alone have the capacity to make and enforce any regulations.
Oh, and by the way, federal government IS Constitutionally given the power to curb the activities of foreign enemies. Evidently, that is not a priority.
Honestly! I mean…HONESTLY!
Our CONSTITUTION is being shredded on the daily though…
Much as I agree that this issue is a matter for concern, we do not need a constitutional amendment to address it. Or, rather, we shouldn’t need one. The founders who authored the Constitution didn’t see a need to be so specific and hair-splitting, where common-sense is concerned, as to spell everything out for us. Unfortunately, our domestic enemies of liberty use that as an excuse to abuse such things as the Commerce Clause to enact whatever mischief they like, simply because those authors didn’t include a footnote specifying the unlawfulness of compelling the purchase of a product.
Sadly, we have a LOT to undo, and dim hope of succeeding, if we wish to return to the Founders’ intent. =’[.]‘=
James Madison once famously said that “if men were angels, government would be unnecessary.” But men are not, and so it is.
Well, if rulers were angels, explicit charters of rights would be unnecessary. But rulers are not, and so they are.
If our courts could be counted on to heed the call of common sense and basic justice, a constitutional amendment explicitly guaranteeing protection from prosecution by secret laws would be unnecessary. But they cannot, and so it is.
The enumerated powers of the US Government still provide ample opportunity for Congress to create a host of criminal statutes which have no Mens Rea requirement. Counterfeiting, interstate fraud, tax evasion and violation of the IP laws (Article 1, Section 8 if you want to argue about whether IP laws are constitutional) come to mind.
There’s also the fact that the federal government maintains its own separate comprehensive laws covering things like murder, rape and robbery that happen on federal property like military bases or non-state territories. In addition to that, the entire UCMJ would be room for Congress to play with the liberties of over 1,000,000 Americans.
Actually, Verizon v. Youtube clearly establishes that Intellectual Property infringement DOES have a mens rea requirement, and as such, the owner has no case if he does not first send a cease-and-desist letter and give sufficient time to address the infringement before filing a lawsuit.
Correction, I believe the case was Viacom v. Youtube.
Unelected government bureaucrats can create laws — excuse me, “regulations” — on their own initiative because Congress claims the ability to delegate their legislative powers to other government entities. An amendment saying that Congress cannot delegate its legislative powers would bring the US regulatory apparatus crashing down.
Another problem is that your proposed amendment may not restrain US bureaucrats as much as you think. You have left them the ability to levy small fines, and a large number of small fines applied to the same individual or corporation can amount to a major seizure of property. Far fetched, you say? To show how things get twisted, consider how legislation giving the US government the power to regulate navigable waterways, legislation which was obviously intended only to apply to large rivers and canals, has been used for decades to prevent property owners from destroying “wetlands” — that is, damp patches of ground on their property.
The real problem is that government and society in general have become full of people of bad character who cannot be trusted to act fairly and play by the rules.
And those in the government like it this way. As Ayn Rand put it in Atlas Shrugged (which the Instapundit points out was never intended to be a “how to” manual!):
“…..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.”
One small fix needed here.
“…..is the principle that, since the government exists to protect the life, liberty, and prosperity of innocent people, and not to fleece them, it has no business extorting their money.”
Mr. Zubrin, you are dead right about the importance of Mens Rea and the travesty that our criminal justice system has become. The root of the problem is that at every level of the criminal justice system there is a financial incentive to prosecute as many people as possible. Thus, principles of common law and statutory law are regularly ignored for financial expedience. I recently had a discussion with a member of the Bar wherein I asked the following question; Has anyone ever raised the defense that a court cannot fairly try someone if that court gains financially from the person being found guilty?. He said he didnt think so, and that that argument probably wouldnt work very well.
Imagine you go to court to defend yourself against a traffic offense. Is the judge going to acquit you if the court gets all or some portion of the fine you must pay if you are convicted? Of course not. Watching traffic court is like watching a fire sale. The court pressures everyone to plead, pay, and get out of the way. Mens Rea? What is that? Go see the sheriff. We take cash only.
The best way to begin fixing the criminal justice system is to remove that financial incentive. ZZZ is correct that removing congress’s ability to delegate it’s powers would be the death of the tyrannical federal bureaucracy. Next we could look at ways to make Prosecutors accountable for bad convictions.
After watching the “rape” of those 3 white students in the “Duke Lacrosse Case” one needs to include political incentives along with financial in being firmly controlled when fixing the criminal justice system.
The citizens through their voting privileges have all the “political incentives” necessary to halt these abuses. But most citizens are lazy and wish to delegate away their duty of free citizens to be eternally vigilant.
I’m not sure what financial incentive you are talking about. Except perhaps in the rarest of cases, which I cannot frankly even imagine, prosecutors do not act out of financial incentive; the same goes for judges. This is a red herring. I can’t see it ever being raised as a defense by a competent attorney in a normal criminal prosecution.
Prosecutors and judges sure as Hell act for political considerations, many of which may well have rewards of money and power in the future. I’ll pretty much guarantee you that the trial judge in WI that stayed the changes in the collective bargaining law will be on the short list for the SC if a Democrat gets a chance to appoint one. And if those white boys at Duke had been poor scholarship students unable to get fancy lawyering and National attention, they’d be sitting in prison and Nifong would be a hero to the Left and the poverty pimps.
Unfortunately the justice system attracts individuals who see the accused as simply an opportunity to advance their reputations as crime fighters. The guilt or innocence is irrelevant to most in law enforcement from cops to prosecutors and, in many cases, judges as well. The accused is there to be convicted of a crime; the truth is not important. The truth is not even an issue. The conviction rate is what is important. Mens rea gets in the way of the important business of creating criminals. When I hear the term “criminal justice system” I now think that “criminal” is an adjective describing the “justice system.”
Re. 32 psychodad, you make me wonder if you are a prosecutor trying suppress evidence.
Oh no, the main cause of our present situation you describe is too many Amendments to the Constitution already. There should be a Constitutional Convention to repeal all Amendments post the 10th and the 10th should get harsh scrutiny. Anyway, another Amendment to the Constitution would be just more fodder for the Courts to make ridiculous rulings and the Politicians to ignore or take advantage of depending on how much money they get to stuff into their pockets.
I haven’t heard anything that silly since Obama last gaffed. The 17th needs altered. That’s it..
At this point in our history, a Constitutional Convention would be tantamount to national suicide, as far as being a free nation is concerned.
When our original Constitution was ratified, including the Bill of Rights, we had a highly educated population, accustomed to weighing heavy matters of law and doctrine (yes, libertarians, you owe our Constitution to our Christian heritage, like it or not), to reading learned treatises and evaluating them critically. They understood basic rhetoric, logic, English Common Law, political philosophy, history, and theology.
Thus, the discussions were guided by intelligent, educated men, with a breadth and depth of education that is almost complexly lacking today, and were debated and ratified by the general public who, for the most part, had the same breadth and depth of education.
That’s not the situation today.
Witness how many “conservatives” and libertarians think the U.S. is a democracy, or think that the Constitution grants us rights, or that the 2nd Amendment is about self defense or only grants the right to keep and bear common sidearms.
And this level of maleducation is seen on the right! On the left it’s far worse!
Ignorance is the norm these days, and in this environment there is NO reason to believe there would be any good outcome from a Constitutional Convention. We would be sacrificing what we DO have (which is an excellent document, though not perfect), in the (vain) hope that we could do better.
It’s worse than a fool’s errand!
More correctly, at The Founding we had a highly educated electorate. Few states let the riff-raff vote. A lot of things would be solved by three laws: 1)In order to be a registered voter, you must pass the citizenship test given as a part of the naturalization process, 2)In order to register to vote you must maintain a domicile in the district and demonstrate an intent to remain in the district (college students, miliatary, transferred or TDY public employees can vote absentee in their district of domicile), 3) public employees and their agents (unions, associations, bowling leagues)can take no action intended to influence the outcome of an election, initiative, referendum, etc.. I’d also really like a year residency, but the USSC won’t countenance more than 30 days. I’d also like to see going on welfare be a sort of declaration of civic bankruptcy and you lose your right to vote so long as you’re on it, but that may be a reach.
Art, google “pauper’s oath”. Before you got government assistance, you gave up the privilege of voting.
With all due respect, a Constitutional Convention puts everything on the table, including the Constitution, not something I would ever want to do.
“I’m an engineer, not a legal scholar…”
I could tell that from your first few sentences. You are too logical to be a legal scholar. Those “scholars” are the ones who let us get into this predicament in the first place.
What we need is to take back our institutions, which were marched through with the aid of Affirmative Action, by the Left, and their gaggle of seperatist identity politics groups which are extremely hostile to Western Civiliztaion in general and White European Christian Males in particular.
It’s as simple as that.
Scrapping “Diversity Promotion” and as an unquestioned good, and Multiculturalism, and discriminating freely and legally, in both the public and private sectors, on the basis of culture and ideology.
Until you are willing to do that, you are merely fighting phyrric battles to save our civilization.
Right. Plus denying the vote to people on welfare as Mr. Chance urges.
Mr Zubrin is a better engineer than a consitutional scholar (or lawyer). Ignorance of the law is never a good excuse. If he had his way, a vast multitude of criminals would argue their innocence based upon ignorance, i.e. What do you mean it’s illegal to have sex with minors? I didn’t know taking that was a crime? What’s a speed limit?, etc.
Mr Zubrin, please confine your brilliance to expounding on zany space exploration fantasies.
“Ignorance of the law is never a good excuse.”
It works very well for government officials and policemen…..not so well for us serfs.
Quant, it seems you have misunderstood the author’s argument. Are you a legal scholar and not an engineer?
“…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.”
N.B. “generally known and understood to be criminal by a jury of his peers.” You know, some crime like statutory rape or exceeding the speed limit.
Law school grad? Mr. Zubrin’s reasoning is sound and his observations accurate.
Yes I am sure that many criminals would try that, but we are only talking about credible ignorance. Theft and crimes against persons would not fall into that catagory, at least not for us ignoramuses. Perhaps for a brilliant legal mind they would.
You’re reading far more into mens rea than is actually there, I think. Mens rea is the state of mind that forms the intent to commit a crime. It is an element of proof that goes to the degree of guilt. If I burst into your house, call you out specifically, and shoot you dead, that is pretty graphic evidence that I had willfully formed the intention to kill you specifically, which constitutes premeditated murder. If my car breaks down in front of your house and I approach your door with my pistol concealed beneath my jacket, knock on your door with the intent of, perhaps, seeking a jumpstart or a can of gas, you answer the door brandishing your shotgun screaming at me to go away, I begin to retreat to my car but you fire at me, luckily you’re a bad shot and I’m not, so I draw my pistol and shoot you. Depending on the jurisdiction that is either a clear cut self defense or at most a manslaught charge that I’d have a pretty good chance of being acquitted of by a jury unless you were black, I was white, and the trial was in a big city. In any event the distinction is my state of mind; did I buy the wood having formed an intention to illegally procure a prohibited wood or did I unknowing and unwittingly come into possession of the wood? Commission of an unknowing or unwitting crime is not innocence, but it should be a much lower level of guilt and penalty that knowing, willful commission of the same crime.
The criticism voiced above by “QuantumSam” is nonsensical.
The proposed amendment explicitly lists acts of violence to persons or property as crimes, and includes provision for prosecution for offenses that are judged to be known as criminal by jury. Thus no one would be able to escape from prosecution for pretending ignorance that obviously criminal acts were illegal.
Furthermore, adhering to “ignorance of the law is no excuse” when there are a vast number of unknowable laws is a prescription for the abolition of liberty and the subjection of the citizenry to extortion by a legal caste whose expensive consultation is required before anyone dares to undertake any action or enterprise.
Bullseye.
“A self-perpetuating little oligarchy”, as Heinlein described it in his “Magic, Inc.”
Indeed, “QuantumSam”s comment is absurd, as is the idiotic call to repeal all the Constitutional amendments since the Tenth. Even uncritical analysis should make clear that our Founders could not conceive every possible way that unprincipled authoritarians would invent, to threaten the liberty of the Republic.
Harvey Silverglate, a very principled defense attorney, has observed most citizens can unwittingly commit at least “Three Felonies a Day”, in his book with that title. The absence of a “mens rea” condition in many federal statutes as well as nearly all federal regulations means that any day the Feds want to come get you and put you away, they can easily do so. Even if you are entirely innocent and blameless, the crippling cost of a defense means that few citizens can stand on principle to defend their innocence, and will often find themselves extorted to testify against others as well.
A Constitutional amendment is a great idea, and would be a real and valuable protection — although the phraseology you propose needs a lot of work. Some of the worst abuses of mens rea involve broad and vaguely defined offenses such as “mail fraud” and “wire fraud”, as well as the favorite “obstruction of justice” that has entrapped people even when no actual crime was asserted to have been committed, for which justice was allegedly obstructed (e.g., Martha Stewart, Scooter Libby).
It’s tougher than you think; the prohibition on ex-post facto law lasted 10 years and then was held to apply only to criminal law. You can pass a killer retroactive tax. We need the 13th,14,and 19th amendments. I could go on, but abolishing “independent regulatory commissions”mght work too.
It’s amazing that there is such a thing as an illegal wood but an illegal alien is not illegal. Government is the problem, all else is irrelevant.
The irony that you observe is striking, and is further amplified by the diligence with which our government pursues what is at most a technical violation, not even of our laws, but of the laws of another country.
On this basis, DOJ causes enormous damage and imperils the existence of Gibson Guitar, yet the employers who cynically hire illegal aliens experience almost trivial inconvenience, while the token fines amount to about one hour’s wages per man-year of illegal employment, more than offset by the expenses saved by employing illegals.
The legalistic mind seems to miss one simple point. Laws that involve understanding obscure and arcane points of law do NOT require the assistance of an in house SWAT team to serve a warrant.
It is entirely possible to sit down with the alleged criminal and discuss the situation BEFORE breaking into their home and business and causing a permanent economic impact before any criminal wrongdoing is proven.
It would be nice to add language that strips agencies dealing with non-violent offenders of their armed “Inspector General” troops as well. Federal law now grants ANY agency with an “IG” in house the authority to designate and arm it’s own inspection and enforcement troops. While we’re at it no Federal Judge ought to be on the staff of ANY agency starting with the IRS…
My final thought on the matter is that if ALL regulatory agencies were disarmed and Federal Judges limited to serving in Federal Courts, they MIGHT have to get a REAL JUDGE to evaluate a request for a REAL WARRANT.
THEN they might have to convince a separate Law Enforcement Agency that the warrant was sufficiently important to divert resources to serve… (Not that there seem to be many municipalities without a crack SWAT team ready to bust in the doors of any home they are pointed at without bothering to see if violence is necessary to serve a warrant)
If anything the major criticism of the idea seems to be based on it’s being too logical to require a lawyer to interpret…
We need something akin to posse comitatas for all actions by federal law enforcement in a state. We in the West are simply over run with feds. We have Fish and Wildlife or NPS “Law Enforcement” stopping motorists on State roads. The waters are simply over run with them as well, even inside the state 3 mile jurisdiction. I just can’t make myself like the feeling I get as my guests and I look down the barrel of a 50 cal. machine guns in the hands of a 19 yr. old because they just want to know what I’m doing or want to do a “safety check” on my boat.
And actually the problem isn’t limited to federal law enforcement. Federal grants and all the post 911 craziness have small town cops looking and acting like they’re on patrol in Kandahar. Law enforcement from county mounties up to the FBI are far more heavily armed and armored than were the federal troops occupying The South that led to the posse comitatus law. They’ve used civil rights laws and the “somebody has to do something” mentality provoked by lurid TV coverage to make almost every crime a federal crime.
The Constitution to the left is merely a means to destroy such. In short, they use our laws against the USA. It is this selective interpretation of intent and meaning they exploit to the hilt.
Freedom of religion has become freedom from religion.
Free speech is relegated to those of leftist agenda’s only. Porn is covered, the 10 commandments is not.
Another amendment they will ignore or shred is not the answer.
Here is the solution:
1. Reduce the bureaucracy by 95%. Pink slip the pinkos. Outsource as needed. Eliminate public sector unions.
2. Mandatory congressional review and hearings on all Federal judges every 2 years. It begs the question of “why is there a 9th Circuit of Appeals Court?” When virtually every decision they make is reversed and/or made invalid by another Circuit’s opposite opinion on the same subject matter? Fire the dorks.
I just want to know what makes, or allows, the author to think that the federal government would pay any more attention to his proposed amendment than they pay to the constitution and the amendments that are already in place?
On some of the other comments about legal authority and everyone having their own swat teams: My yard in LA county was invaded by 4 black SUV’s which carried many armed and armored people because a neighbor complained that my yard was to messy. Sure enough they found my yard to be messy. How is that efficient use of resources, not to mention scaring the daylights out of my wife. One person in a car could have come and knocked on our door and received polite greetings had they only tried it. I’ve heard from friends all over LA County that it’s happened to them too.
They are like little kids playing cops and robbers.
This is an excellent article and a good proposal Robert. Yes, it needs work, as you acknowledge. But you are over the target. Very well done sir.
Under that theory, the notion of a guilty object would also have to go, since an object is incapable of intent. Thus the legal rationale behind civil forfeiture would go. This is a good thing.
Amazing that the Constitution is such a small document, and all else written by those “elite” in congress takes so much verbiage.
I have always been against any 5-4 decision by the supreme court because any law that isn’t clear enough to get a greater than half plus one, isn’t clear enough.
And any laws that government agencies can’t help a citizen with, and leaves them subject to fines or punishment is wrong, very wrong.
I hope that you can collar someone with some clout in congress to get the ball rolling.
It has little to do with clarity; most 5-4 decisions are purely on ideological grounds. At least right now the good guys usually have the five votes.
The defense of being stupid from English Common law is not really what we need. Rather we need a defense that the law is stupid and violates the Constitution under the 10th amendment. The banks that were forced to make loans in towns where the corupt mayors had run all industry off had no defense against Barney Frank and Chria Dodd but should have been able to say NO! The extension of loans to unqualified applicants cam long after the Community Reinvestment Act during the Clinton administration. (Remind me again why Ken Starr could not find a federal Law to impeach Bill Clinton unedr.( and forced the banks to enter into a conspeicy to issue the bad papper t
OK, but thanks to the Supreme Court, mens rea no longer applies to adults under the age of 18 when it comes to the death penalty. It’s a new child right exemption recently discovered in the constitution after two hundred years of looking by American judges, apparently after extensive consulting with European judicial precedents on the matter. So basically a seventeen year old (fill in the politically correct name) gang banger can kill you, your family, and your little dog too with malice and fore thought, but we, the state, can’t execute him. He or she gets a freebee. Maybe if that “independent” judiciary, namely its judges, were impeached for once, for the first time, say back before the civil war, for blatantly stupid and unconstitutional decision making we could still execute rabid minors for killing like pragmatic adults. Maybe we could start with impeaching the four justices who thought the second amendment only applies to the State? After all, judges can’t be sued, they get to be children forever.
A Constitutional Amendment for something that is already widely accepted under law, but is just as widely ignored by the courts? Just exactly what good would that do?
Freedom is for moral people. They do not abuse their freedoms, and so, they do not have such taken from them. Immoral people will always abuse freedom, and so, it gets taken from them.
America became an immoral society. Lacking virtue, the people elect people who truly represent them, other immoral people. All the laws, all the Amendments in the world, will never be successful in making people behave morally again.
A moral country does not need a complex legal system. Moral people know the difference between right and wrong, and eschew wrong. They handle things locally and with good judgment and discretion. The police trust such moral citizenry, and the feeling is reciprocated. Very few police are needed, and they can call upon the citizenry (the militia) as back-up, if necessary. Laws are respectable, and thus, respected. People help police their own communities.
We used to be like that. Doors did not need locking. Then came the 60′s and, “Do your own thing.” It was rejection of inhibitions, of self-control, of morality. The Baby Boomers destroyed America.
“America is great, because she is good. If America ever ceases to be good, she shall cease to be great.” – De Toqueville
“Then came the 60′s and, “Do your own thing.” It was rejection of inhibitions, of self-control, of morality. The Baby Boomers destroyed America.”
Dude, get a grip, the first birth year baby boomers were just turning 18 in 1964. By 1968–when LBJ ended draft deferments for graduate school and the draft riots ensued, (except for doctors and lawyers and priests)–the baby boomer’s power base and power positions were maybe being student body president at Cal. Jerry Brown, Tom Hayden, and Jane Fonda were not baby boomers, nor were the original SDS and the Weather Underground or Heuey Newton and the original Black Panthers. It may come as a surprise to you, but most of the baby boomers who ended up in the army doing the Vietnam War scene couldn’t have told you the difference between a communist and capitalist–which, come to think of it, given the corporate to big to fail bailouts by government, there isn’t much of practical difference in terms of political economic outcomes, but I digress. Actually, the first “black” baby boomer president was Bill Clinton, circa the 1990s. That was the first baby boomer bubble decade, but Greenspan wasn’t a baby boomer either.
It was Lincoln who destroyed the Constitution and destroyed the conception of the US being a minimally governed free-trade zone among sovereign and independent nations, replacing it with the present-day Foggy Bottom.
Franklin Delano Roosevelt spent his terms searching out and destroying any intact remnants of the Constitution that he and his legal team could find, in between fomenting illegal foreign wars with nations that were not our enemies and posed no possible threat to us.
The rot set in long before the 1960s. The Constitution was a dead letter, to be ignored at the whim of our legislators, long before anyone now reading this was born.
If people realized that the definition off obstruction and conspiracy have been as broadly interpreted as they have been, they’s e carrying through the streets on their shoulders. Bravo.
The movie has been made – “The Freshman” in 1990. Corrupt Fish & Wildlife agents are the villains.
It’s terrific, starring Marlon Brando and Matthew Broderick.
And no asset forfeiture except in connection with a criminal conviction.
So Bernie Madoff wasn’t guilty because in his own mind he hadn’t committed a crime?
Somebody held me out here.
No. Madoff WAS guilty, because he knew it was illegal, or at least that 100 juries out of 100 would conclude such.
I think it already is unconstituational. Justice Robert Jackson ruled on this over a half century ago:
http://en.wikipedia.org/wiki/Morissette_v._United_States
Possible that all these crimes are “public welfare offenses”? Can’t be, you would think.
Look I am sympathetic to Mr. Zubrin’s concerns, but a lot of what he writes is just wrong. He is conflating two concepts, mens rea and knowledge that an act is a violation of the law. These are two different things.
Mens rea isn’t knowledge that you are violating the law, it is knowledge that you are doing the thing that is a legal violation. For example, in a prosecution for possession of cocaine, the mens rea aspect is proving that the defendant knew he was possessing cocaine. It would not be a crime if he thought is was just sugar–he was possessing cocaine but didn’t have the legal intent to possess cocaine.
But it has never been a requirement for the government to prove that the defendant knew it was against the law to possess cocaine. This has never been the rule, except in rare cases where the statute includes a “wilful” requirement.
I think that Mr. Zubrin’s real beef is with the proliferation of “strict liability” crimes that don’t require proof of a mens rea. There used to be just a few, generally for a good reason. For example sex with a minor is usually a strict liability crime, so the government doesn’t have to prove the defendant knew the girl was only 16.
The problem is that the number of strict liability crimes is growing, especially in areas involving regulatory crimes (i.e environment and corporate disclosure). These laws need to be repealed, but I don’t think we need a constitutional amendment.
Thank you, Roscoe. You are the voice of reason and you have accurately explained the law. The author is indeed conflating two different principles.
Thanks Roscoe. The article makes a great point, but I didn’t want to have to type up a strict liability comment tonight. Glad you did, because now I can tweet this without additional work.
Interesting to know. I recall a case some years back, in which thieves stole a truckload of frozen beef… Rectums. They pleaded not guilty because the product was essentially garbage, but the judge hit them with intent, because it was pretty clear that what they thought they were stealing was valuable food. Sounds like the inverse of Mens Rea. =^[.]^=
One thing that a lot of people overlook is the effect of the schools; kids are taught (sometimes VERY firmly) that intent is less important than simple possession of forbidden things. One example from my experience was a boy who was almost expelled from high school because he had a trucker’s wallet, with a chain to attach it to his belt. His mother, who worked for the city Police Department, had given it to him, as he had lost several conventional ones, and when she told them this they backed down. But the boy DID have a classmate who was expelled for the crime of carrying a sharpened No. 2 pencil in his hand as he walked through the halls between classes; this was a violation of the school district’s Zero Tolerance weapons policy. And at about the same time, a girl in a nearby school was expelled for having a Tweety Bird charm on a 1/8″ chain, which was a violation of that school’s weapons policy. If they grow up thinking that intent or knowledge (No. 2 pencils have a generally-recognized function in schools that is not usually weapon-related) don’t matter, it is hard to see how they are going to find routine ignoring of Mens Rea by the government objectionable.
It’s foolish to propose another constitutional amendment. The same people who ignore the constitution we have will also ignore the new one.
‘WAY too wordy: you want something like “No crime shall be charged that does not include an allegation of mens rea, and no guilty verdict shall be returned that does not include a finding of it.”
We must maintain a clear idea of what is meant by mens rea. Mens rea and the doctrine that “ignorance of the law is no excuse” are only orthogonally related, and one does not preclude the other.
Here’s an example. Ownership of an unregistered machine gun is a very serious Federal crime that under some circumstances can get you locked up longer than if you had committed rape or murder. If you knowingly buy or make an unregistered machine gun, regardless of whether or not you knew it was illegal, you’ve performed an illegal volitional act by your own deliberate decision, and off you go to the gray-bar hotel. Ignorance of the law is no excuse, nor should it be. If it were, cutthroat criminals could plead ignorance of the law and literally get away with murder.
On the other hand, suppose you have a perfectly legal semi-automatic gun that one day develops a malfunction at the range and shoots two or three bullets with one pull of the trigger. You didn’t modify it or intend in any way for it to become fully automatic. Yet, if you are so unlucky as to have a Federal law enforcement officer nearby when it happens, you will certainly be arrested and packed off to jail just the same. The way the law is written and interpreted, it matters not at all that you had no intent for the weapon to malfunction and no control over the fact that it did.
Or suppose that you are an elderly widow whose husband illegally brought back a war trophy MG42 from WWII, and then died, leaving it in the back of your closet. You don’t know what end of it the bullets come out of, much less the difference between automatic and non-automatic weapons. You never formed the conscious intent to buy, make, sell, or use a machine gun; you may not even remember you have it, or perhaps you decide to keep it as an heirloom for your grandson. If your house happens to be searched for some reason and the gun is found, you may be looking at ten years in medium security Federal prison.
If this seems ridiculous, well, there are people rotting in jail right now for this very thing, convicted by a jury of their peers who were browbeaten by judges and prosecutors into believing that the law does not require any element of intent for a conviction. This is what ought to be corrected by reform of mens rea, and not the applicability of unknown laws that one violates by his conscious and knowing action.
That said, I’m all for reform of the thicket of unjust laws that oppress our citizens, including the restrictions on automatic weapons.
To get a law or amendment passed, we need the substantial agreement of the political class. As is is currently composed, they will not be sympathetic to this idea. Perhaps a campaign to educate the public that jury’s do not have to convict despite what a judge says would be helpful. Also, If the myth makers of our time (hollywood) were interested in this, that would also help greatly in advancing this cause.
I think Robert Heinlein said it best with the new Constitution in “For Us, The Living”:
“Every citizen is free to perform any act which does not hamper the equal freedom of another. No law shall forbid the performance of any act, which does not damage the physical or economic welfare of any other person. No act shall constitute a violation of a law valid under this provision unless there is such damage, or immediate present danger of such damage resulting from that act.”
Interesting but off the mark. A few people noted that mens rea is not a required element of some crimes; this bears repeating as well as amplification. Mens rea is not an element of >many< crimes; I'm sure most of you are much more familiar with the expression "Ignorance of the law is no excuse." The law surprises many people every day who had no idea that their activities gambling/dogfighting/drag racing/file-sharing/creative-tax-return-filing/13-year-old-niece-diddling etc etc etc were against the law. Generally, it is only the most grievous of crimes which must have m/r proven. All of which is beside the point though — while the article does make valid points about bureaucracy, a "mens rea" requirement in criminal law is pointless, foolish, and something I would expect to see from a lower-order 9th grade civics class, not something purporting to be a thoughtful conservative journal.
Pajamas, you should be embarrassed to have this on your site.
Isn’t it marvelous how, rather than argue against the benefit of having such a protection inscribed into our legal code, this person denounces Pajamas Media for publishing an article advocating it.
Truly, a comment of great (clinical) interest. Indeed, it is the classic response of totalitarians to complain about the publication of articles they find disagreeable.
@PsychoDad: “Generally, it is only the most grievous of crimes which must have m/r proven.”
Then why was Gibson Guitar shut down, with SWAT team descending upon them with weapons drawn? What good is it for Gibson eventually to “prove” that they had no m/r, when they’ve lost millions from the shut-down itself?
Or are you arguing that everyone, before they act, must somehow search all federal/state/local AND FOREIGN statutes before engaging in an act?
Are you aware, sirrah, that you are arguing AGAINST the whole idea of human freedom as opposed to the overarching power of the state?
“Ignorance of the Law is no Excuse” is from Roman Law (if memory serves from 50 years ago) and we are working mostly from English Law here — big difference.
Also, the only place I have seen that excuse used where it worked was when it was claimed by a lawyer, a judge or a govt. ‘worker.’ That makes the law a lot less than advertized, more like a bad joke.
I was raised to think that selective law enforcement was against the law — now that’s all we have — so sue me.
If you’re correct, that would be after Roman law was codified onto 12 “Tables” that were posted in the Roman Forum for all to read. In that context “Ignorance is no excuse” is reasonable.
Mens Rea refers to knowledge of the deed, not to knowledge of the law.
The article is blurring the concepts shamelessly. Dumb, dumb, dumb.
Rolling over in your sleep and hitting someone is not a crime. You hit the victim, so the Actus Reus is present, but with no intent to act, so no Mens Rea, therefore no crime. Whether or not you knew it was against the law to hit someone is immaterial.
Let’s pose a hypothetical giving this topic the dignity it deserves. Suppose one breaks wind, say in church, involuntarily. No crime, because no intent to disrupt or annoy. However, if the actor did so intentionally, we would make disorderly conduct or some similar offense of disrupting a meeting or some such. The distinction? Intentional act–the Mens Rea. It would not matter that the wind-breaker were learned in the law of disorderly conduct or not.
I know what the writer is complaining of, which the criminalization of regulatory breaches, but the concept of Mens Rea in inapposite.
Mr. Gots says “Mens Rea refers to knowledge of the deed, not knowledge of the law.”
That is precisely limitation that the bureaucratic police state advocates would like to put on the protection to the innocent offered by Mens Rea.
Under this interpretation, if you own furniture made of illegal wood, you don’t need to know that the wood is illegal in order to be thrown into prison, you just need to know that you own the furniture.
The question before us is not whether some jurists have chosen to embrace such an interpretation. They have. That is precisely the problem. The question we need to address is whether we wish to live under such a system.
I’m with you. The actual words mean guilty mind, not conscious mind. If you know you did something, but have no idea at all that the deed you did is against the law, or even a bad thing to do, then how could you have a guilty mind. These burocratic regulatory things should be resolved by warnings for the 1st offense, with a briefing and counselling on possible related offenses, and sanctions for repeated offenses.
The only exceptions, as the amendment states, are offenses against others that most people in the general public already know to be wrong. For example, almost everybody knows that common traffic offenses like speeding are illegal, so no mens rhea should be needed for that. If its an industry reg that 99% of the industry know about, then you should not need mens rhea for that either. But if it is some obscure reg that most people have never heard of, even many in that industry, then ignorance of the law should be a legit defense.
So to prove anything, the prosecution should have to either prove the accused knew they were doing wrong, or prove that most people with common sense, with any knowledge of that industry, would know that that activity was wrong, before they heard about the law.
Nice. But how about taking it a step farther, with a rider that narrowly defines ‘interstate commerce’ to how it was commonly understood before FDR’s New Deal court packing threats expanded it? Vast swathes of bureaucracy and spending would become officially unconstitutional and this nation would get a whole lot less Kafka-esque.
I would have 2 amendments. Have this amendment to reinstate the orignal meaning of Mens Rhea, and another, to reinstate the original meaning of interstate commerce. For those who say these amendments should not be necessary, because a supreme court and congress with integrity would not allow these abuses to occur, I reply that since these abuses HAVE occured, and seem to be getting worse, obviously both congress and the courts do NOT have intregity, and these constraints are needed.
Excellent idea. Same thing happens when a guy is prosecuted. The prosecutor says that this guy broke the law. The judge,looking all ministerial adjudged that yes, a law was broken and a sentence must be meted. Then the jury goes, yeah, but the guy didn’t really mean it so, we are going to allow a Mulligan.
The jury is the enforcer of mens rea. They have to know it, though.
The happy note is that we, the people can have it without going through the amendment process. All we have to do is get educated about our power over the law and duty to perfect justice.
Regulation invites bribery. The bribes might be directly to law enforcement, or to the legislators (in terms of political donations or other support) for special exemptions. Congress’ habit of giving the executive branch de-facto legislative power (via regulations with the force of law) enables elected representatives to escape the political fall-out of tyrannical laws while selectively collecting bribes for giving exemptions and special treatment to special interests.
Ever wonder why Gibson Guitar, a Republican contributor, was raided while Martin, a Democrat contributor, was not? Bribery.
Perhaps it is time for a new rebellion – a mass refusal to obey anything not explicitly passed by the legislator (Congress or state). Executive agencies possess the expertise to propose regulations but do not have the legitimate power to make those proposals legally enforceable absent legislative debate and votes.
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