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January 2013

Liberty: do we need a law for that?

by Andrew C. McCarthy

On the transformation of laws from guardians of liberty to agents of social change.

It is almost trite to observe that a free society cannot exist without the rule of law. But on the matterof liberty, law is, at best, highly overrated. In fact, it can be downright pernicious.

As Kevin Williamson has argued, real liberty is evolutionary. Free societies are dynamic, efficient,and innovative. Law, by contrast, can become the paralyzing debris that de Tocqueville predictedmight someday cover the surface of modern democratic society. It is the “network of smallcomplicated rules, minute and uniform, through which the most original minds and the mostenergetic characters cannot penetrate, to rise above the crowd.”

If the modern welfare state softens, bends, and usurps the will of man, law is the mechanism by

which—to borrow again from de Tocqueville—it “compresses, enervates, extinguishes, andstupefies a people, till each nation is reduced to nothing better than a flock of timid and industriousanimals, of which the government is the shepherd.”

To be sure, law is a pillar of liberty—there can be no liberty without it. But law can never be thefoundation of a free society—that role is reserved for culture. And if law is to enable freedom ratherthan impede it, it must be a very particular kind of law: the kind that regulates government—thatreins in state authority. When law empowers government, when its tendency is to become ourwillful master rather than our defense against oppression, such law is the enemy of freedom.

Of course, in some contexts, law’s hostility to liberty is precisely what we intend. The most obviousexample is the criminal law. Our penal statutes are designed to curb the liberty of wrongdoers so thatresponsible citizens can thrive. It is our common law heritage that an accused is presumed innocentuntil the state proves beyond a reasonable doubt that he has violated a criminal statute. Once suchproof is established, though, liberty is withdrawn for a period of time commensurate with theseverity of the offense.

This is as it should be, provided that the statutes in question—enacted by lawmakers who arepolitically accountable to the governed—truly reflect the society’s sense of serious wrong. Malum inse, which Daniel Hannan may agree with me is nearly as easy to translate as Magna Carta, is thecategory of acts that are inherently evil. Such offenses as murder, theft, and bearing false witnessthat are prohibited in virtually every civilization. In a free society, the understanding that suchtransgressions will be justly punished is essential. It is the basis of ordered liberty, that delicatebalance between unfettered license and civic obligation that any society must have to be trulyfree—to flourish.

But then there is malum prohibitum, the category of acts that are not innately wrong but areproscribed because our lawmakers choose to prohibit them in the service of societal interests thoughtto be compelling. To take a concrete example, consider the “structuring” of cash transactions: say,breaking a large deposit of currency into several smaller deposits, all in amounts of less than$10,000. (While there are aggressive money-laundering laws in the U.K., the English do not have acash-transaction reporting requirement as we have in the U.S. and Australia.)

It is not that there is anything inherently wrong with depositing $9900, but the society sees thedistribution of harmful narcotics—an enterprise that, in the U.S., is typically conducted in cash—asa grave problem. So the law imposes a reporting mandate on cash transactions of $10,000 or more.An intention to conceal prodigious cash income, a telltale sign of drug dealing, is inferred fromdeposits just under the reporting threshold.

Obviously, there is a limitless array of legitimate reasons to engage in cash transactions in amountsslightly under $10,000. Moreover, one can imagine many perfectly innocent reasons for parsingthese dealings into smaller amounts. If the money is legally possessed and disposed of, thelibertarian would understandably say that the relevant transactions are none of the government’sbusiness.

Yet lawmakers reason that a mere reporting requirement—describing the transaction and theownership of the currency—is an acceptably small infringement on the individual’s liberty, and isnot an undue record-keeping burden on financial institutions. The ledger, it is said, tips in favor ofsociety’s compelling interest in discouraging and rooting out serious criminal enterprises. This maybe a reasonable cost/benefit analysis, but the fact that we engage in such analyses to justifyregulating a great deal of innocent conduct is a heavy burden on liberty.

To take another example, one involving even less serious criminality, albeit conduct that it hasbecome common to punish with astounding severity, American law bars “insider trading” in

securities. This, of course, involves purchases or sales of stock and other commercial paper bycorporate officials who, because of their position, are privy to business information prior to its beinglearned by the rest of the market—information that will affect the price of the company’s shares.

Inherently, there is nothing wrong with trading on inside information. In fact, a strong argument canbe made that such trading benefits other market participants, signaling what the best-informedtraders think of a corporation’s prospects. But lawmakers, answerable to voters, have assessed thatthe society’s interest in access to valuable information is trumped by concerns for“fairness”—portrayed in this instance as a “level playing field” in which all traders can theoreticallybe put on an equal informational footing and no insider may exploit his advantage for profit.

It is in the malum prohibitum category that we begin to perceive the profound tension between lawand liberty. Is there, after all, really a “level playing field” in stock trading? Is the point really tolevel the playing field, or are the aggressive prosecutions and harsh sentences more like a moralityplay—an indication of hostility against profit in the unpopular financial sector, a demonstration thatwe can be just as tough on rich white crooks as minority offenders?

Is it really better for market participants to be deprived of valuable information? If the CEO wants todump his shares, isn’t that something you’d like to know before buying in?

Furthermore, what is the limiting principle? The law is always supposed to have one, so that aperson of average intelligence is on notice of what is prohibited. If “fairness” is the goal, if thelevel-playing field means everyone must be equally blind, why stop at the corporate insider? Whynot rope in his brother-in-law, his golfing buddies, and his broker, to all of whom he may have saidsomething or other that provided a leg up over other investors?

In fact, crusading prosecutors often endeavor to push this envelope, to broaden the universe of“insiders.” Having been a prosecutor for nearly twenty years, I can tell you that envelope-pushing isan occupational hazard.

When Congress writes criminal statutes, it typically uses language that casts a net wider than thenarrow misbehavior that provoked it to act in the first place, essentially delegating its law-makingpower to the executive on the assumption that prosecutors will exercise their discretion with reasonand restraint. Besides the sheer volume of statutes, this criminalization creep has become a feature ofour system.

It is an increasingly perilous enemy of liberty. It is one thing when law prohibiting serious crimeliterally has a broader application than the lawmaker intended; it is quite another when inevitableoverreach expands, in the malum prohibitum realm, beyond conduct whose criminalization wasdubious in the first place.

In any event, populist rationales like “fairness” and “social justice” are a slippery slope—whetherthey are invoked to justify aggressive use of the law or, increasingly during the Obamaadministration, the non-enforcement of law, which is effectively the imperial executive repeal oflegislative enactments.

During the 2008 U.S. presidential campaign, Senator Barack Obama famously called for higher taxrates, particularly for “the rich”—a descriptor that, in Obama’s estimation, turns out to apply to analarming number of people who are far from wealthy. It was pointed out to the candidate that lowertax rates often result in higher revenue collection by the Treasury, meaning that the higher rates hechampioned would actually result in less money available for redistribution to the social welfareprograms he holds dear. But Obama said he would raise the rates anyway . . . as a matter of“fairness.”

The same Obama now endorses a racially discriminatory policy in the enforcement of our civil

rights laws: If the victim in a voter intimidation case is white and the aggressor is black, the case isnot prosecuted. Although the laws are racially neutral on their face, protecting all Americans,Obama’s Justice Department appointees theorize that they are not so much law as narrative, penancefor the indelible stain of racism.

Analogous reasoning informs the burgeoning field of “hate crime.” Not long ago, we prosecutedcriminal acts; we did not obsess over their motivation, since the law’s role in a free society is topromote order, not regulate thought. But now, acts are investigated, or not, based on the class ofvictim, and on whether the acts provide our grievance professionals with grounds to agitate againstthe society’s alleged racism, sexism, homophobia, Islamophobia, and the like. The point is to justifyever more law designed to socialize us, not protect our liberty.

Similarly violative of the Constitution’s command that government provide equal protection underthe law is the Obama administration’s waiver policy. The president purports to have the power togrant immunity for prospective violations of law. This is a novel privilege generally extended tocronies and important electoral constituencies. Compliance, for them, would be prohibitivelyexpensive or would provide a pre-election window into the punitive consequences ofObamacare—the president’s signature “achievement,” yet one whose most dreadful provisions arespecifically designed not to kick in until after his reelection has been secured.

In addition, the administration has sued the state of Arizona for attempting to enforce the federalimmigration laws. Not for flouting the law, but for honoring it.

Until four years ago, the dispositive legal question when state law collided with Leviathan’s statuteswas whether Congress had intended to preempt the states from enacting contradictory law. UnderObama, by contrast, a state that embraces Congress’s law is nonetheless penalized for failing todefer to the executive’s policy of non-enforcement—i.e., his policy of encouraging illegalimmigration.

This is the increasingly common role of law: not sentry of liberty but agent of social change. It isstill called “the rule of law,” but it is really the rule of lawyers, the tool by which agenda-drivenideologues sculpt a society, rather than unleash its potential. Why are they succeeding today wherethey have failed in the past?

The most significant explanation lies in the centrality of culture. We are law-obsessed in the West.This is especially so in the United States, where we venerate our Constitution as if it were the cause,rather than the effect, of our freedom. We seem to have forgotten a central truth Paul Johnsonbrought into such stark relief in his magisterial history of the American people: Americans were adistinct cultural phenomenon for well over a century before shots rang out at Lexington andConcord—long before there was a Constitution and a federal “rule of law.” Our commitment toindividual liberty, free markets, and limited government shaped our law and our politics—not theother way around.

For two generations, however, we have ceded to progressives Western society’s most influentialinstitutions: the universities, the arts, the press, the government and its ever-metastasizing,ever-less-accountable bureaucracy. Culturally, progressives are a different breed. They are socialengineers, not societal energizers; consequently, they see the traditional rights to be free fromgovernment demands and to have government restricted to its expressly enumerated powers asnuisances, not necessities.

For the modern Left, in particular, the individual’s freedom is a relic of a bygone time, when life wassupposedly simpler and dominated by sexist, slave-holding white men of a colonialist bent. Incontrast to the Right’s emphasis on liberty, focusing on what the state cannot do to you, the Left’smétier is rights, what the state must do for you—which is to say, what the state must compel you to

give to me.

Law is the compulsive device by which such schemes are carried out. But, again, law is enacted bypolitically accountable officials—usually, we can vote the bums out. These social-engineeringschemes take root only because society has become habituated to them. In the main, habituation isthe function of culture, not law.

The late, vastly underappreciated, political scientist Jacob Lieb Talmon coined the phrase“totalitarian democracy” to describe the form of “political Messianism” that infected free societiesduring the twentieth century. It was based, he asserted, on “the assumption of a sole and exclusivetruth in politics.” The progressive would have his truth transformed into society’s “absolutecollective purpose.” The notion of liberty is thus turned on its head: Freedom becomes submission tothis exclusive truth, this collective purpose. Law becomes the mechanism by which dissenters aretrained and disciplined until the need for coercion fades away—because alternatives have beeneliminated.

Now what does that sound like? For anyone paying attention during the last two years, it sounds likethe “Arab Spring”: the ascendancy of Islamic supremacism, which is Middle Eastern Islam’s soleand exclusive truth. Islamic supremacism is implemented through sharia, classical Islam’s legalcode. More accurately, sharia is Islam’s totalitarian framework for how human life is to be lived,with emphasis on the collective (the ummah) and instruction on all matters great and small, frompolitical, financial, and military down to hygiene and relations between the sexes.

Of course, the Islamist wants his rule of law, too—but for the purpose of inhibiting the population,not unleashing its potential. And his brand of sharia is being imposed because upwards of two-thirdsof the population wants it, as they have told us in poll after poll and now election after election.

There is perhaps no better reflection of this dynamic, of culture’s dominance over law, than life inAfghanistan under its new, “Made in the U.S.A.” constitution. When it entered into force in January2004, the State Department, the document’s shadow author, was ecstatic. It was rife with Westernlaw: sonorous paeans to universal freedom and equality. Liberty itself was portrayed as the“inviolable,” “natural right” of all human beings. Zalmay Khalilzad, then the top U.S. emissary in theregion, cooed that the new constitution “set forth parallel commitments to Islam and to humanrights.”

“Parallel” was an interesting choice of words. As the State Department knew, Afghans would nottolerate odes to nondiscrimination and the banning of “punishment contrary to human integrity”unless the constitution made the obvious explicit: These Western ideals would be subordinate toIslamic principles.

The new constitution extolled the virtues of “rightful jehad” (also known as jihad) in its very firstsentence. Its first article declared a sovereign “Islamic Republic”; its second established Islam as theofficial “religion of the state”; and its third announced to the world that, within Afghanistan, “no lawcan be contrary to the beliefs and provisions of the sacred religion of Islam.” It mandated thepromotion of Islamic education, and required that Islamic traditions be honored in family formationand child-rearing. It inscribed supremacist scripture on the national flag; dictated that all publicministers swear “to obey and safeguard the provisions of the sacred religion of Islam”; and permittedthe judiciary, in lieu of any civil legal training, to be schooled exclusively in sharia.

Did the State Department figure a few tropes about human rights law would change the Afghansover time? That seems unlikely: The constitution expressly provided that one of its terms couldnever be altered: “The provisions of adherence to the fundamentals of the sacred religion of Islamand the regime of the Islamic Republic.” Within a few months, Abdul Rahman, a Christian who hadconverted from Islam years earlier, was imprisoned and put on trial for the capital offense of

apostacizing from Islam.

Had the stakes not been life and death, had Western coalition forces not sacrificed blood andtreasure only to usher in a constitution under which the Taliban itself could have governed withoutchanging a comma, it might have been amusing to watch State Department officials and Europeanministers wring their hands as if there had been some terrible misunderstanding, as if someone inAfghanistan’s sharia-steeped judiciary must have forgotten that, as a U.S. government spokesmanspluttered, “freedom of worship [and] freedom of expression . . . are bedrock principles ofdemocracy . . . that are enshrined in the Afghan constitution.”

Only after some frenzied arm-twisting did Hamid Kharzai, the Afghan president dependent on theWest for his survival, have Abdul Rahman quietly whisked out of the country before the deathsentence could be executed. The oldest lie in the book was used to justify his extradition: thedefendant was pronounced non compos mentis—the rabid public would accept no other explanationfor overlooking a conversion away from Islam.

The embarrassing episode resulted in exactly zero movement to repeal the apostasy law in favor ofthe constitution’s ostensible safeguarding of freedom of conscience. Five years later, Sa’id Musa, anAfghan Red Cross worker, also had to be smuggled out of the country during a death-penalty caseover his conversion to Christianity.

And just last year, Karzai’s office announced that he had magnanimously commuted the prisonsentence of a nineteen-year-old woman serving a twelve-year term imposed after she was convictedof having sex out of wedlock—with a relative who had raped her. Karzai’s rationale for the pardon?The woman had cured her indiscretion by agreeing to marry the rapist, whose child she had borneduring her jail term. In reporting the story, the Associated Press noted in passing that “about half ofthe 300 to 400 women jailed in Afghanistan are imprisoned for so-called ‘moral crimes’ such as sexoutside marriage, or running away from their husbands.”

Contrast immutable Afghanistan with wavering America. For the promotion of liberty, it is hard toimagine a better law than the First Amendment: specifically, its unvarnished command thatCongress could “make no law . . . abridging the freedom of speech.” Yet, the Obama administrationhas been colluding for nearly four years with the Organization of Islamic Cooperation to codify aglobal sharia suppression standard making it unlawful to engage in speech that would incite mere“hostility to religion.”

In effect, the resolution that would prohibit critical inquiry into the supremacist ideology, rooted infundamentalist Islam, that openly calls for destruction of the West. It would make it illegal for us todefend ourselves—the most vital natural right of a free people.

Such stories could fill a book. But for present purposes, the point is that law follows culture, not theother way around. If a culture is authoritarian or becomes authoritarian, its law will rein in thepublic, not the government. It becomes an instrument of oppression, not a pillar of liberty.

Andrew C. McCarthy is the author of the The Grand Jihad (Encounter).

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This article originally appeared in The New Criterion, Volume 31 January 2013, on page 28

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