September 15, 2010

September 15, 2010 | Commentary on

The Constitution and Crime

Two hundred and twenty three years ago, the American people adopted a document so influential that it continues to serve as a model for governmental organization throughout the world. We proudly celebrate Constitution Day every Sept. 17. But, increasingly, these celebrations are tinged with concern that our constitutional heritage is being eroded.

Over the past few decades modern liberalism, along with activist judges and other public officials have repudiated many of Americas core principles. Assaults on state efforts to control immigration and the imposition of a federal mandate to buy health insurance are two of the most recent challenges to settled constitutional order.

Another sign that we have lost our sense of the Constitution lies in the phenomenon of "overcriminalization." Put simply, government is making too many criminal laws, creating traps for people who are doing their best to be law-abiding citizens. Consider: The Constitution itself identifies only three federal crimes - piracy, counterfeiting, and treason.

When the First Congress enacted the original Crimes Act in 1790, it stipulated only 17 federal crimes. Today, Congress own research service can't even count all the federal crimes on the books. Our best estimate is that the federal code now delineates more than 4,500 federal crimes. And federal regulations create tens of thousands more. Our Founding Fathers would recognize relatively few of these offenses as crimes.

At the time of the founding, almost all criminal law punished conduct that everyone would recognize as wrongful - offenses like murder, theft, and burglary. And virtually all crimes required proof that the accused had acted with a "guilty mind" - that is, with the intent to do a wrongful act. My, how things have changed.

Today, the vast majority of the crimes are regulatory offenses. They involve conduct that is not inherently wrong but has been made criminal only because an elite legislature - or unelected bureaucracy - has decreed it to be so.

To make enforcement of these new social norms easier, legislatures have often jettisoned the "guilty mind" requirement. As a result, people may be punished with jail time for doing things they had no idea were illegal, much less criminal.

Our criminal law has become unmoored from its historical foundations. Absurdities abound as a result. "One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors and Activist Judges Threaten Your Liberty," a recent book from the Heritage Foundation, recounts dozens of examples of Americans going about their business, only to find they have unwittingly committed crimes.

Hence, a 12-year old girl is arrested for eating a French fry in the Washington, D.C., Metro system. A 63-year old grandmother in Palo Alto, Calif., is arrested for failing to trim her hedges in the "officially approved manner." Four FBI agents, in SWAT gear and armed with automatic rifles, arrest an Alaskan inventor for shipping scientific material without a federally mandated sticker on the package. A retired orchid grower spends 17 months in jail for importing orchids without the proper paperwork.

As the list of criminal acts expands, it becomes harder for the average American to get through the day without unknowingly committing a crime. This situation creates an even more insidious danger. If everyone is potentially a criminal, then the government and its employees have vast powers to decide which people to charge. With so wide a scope of possible criminal charges, we now face a situation where little but the discretion of the government determines who goes to jail and who goes free.

When government exercises that discretion with great wisdom and restraint, justice will result. But as reflected in the principles embodied in our Constitution and our concept of the rule of law, we insist on a government that is limited precisely because we doubt the unerring wisdom of the state or its officials. The comprehensiveness of criminal law now means that it may be deployed as a weapon against the disfavored or the politically unpopular without regard to the actual blameworthiness of their conduct.

Without limits protecting citizens from haphazard application of criminal punishment, law becomes a tool of oppression rather than protection. As it diverges from commonly held ideas of justice, respect for the law declines, as does its moral force upon American society. Without that respect and force, law is far less able to further the ends of government in protecting the life, property and liberty of the average American.

As we celebrate Constitution Day, we should remember its enduring principles. If we do not, America will soon become a place where government has the power to deem anyone a criminal.

Former U.S. Attorney General Edwin Meese III is chairman of the Heritage Foundations Center for Legal and Judicial Studies.

About the Author

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies

First appeared in The Washington Times