The New Criterion

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 matter of 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 predicted might someday cover the surface of modern democratic society. It is the “network of small complicated rules, minute and uniform, through which the most original minds and the most energetic 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

It is our common law heritage that an accused is presumed innocent until the state proves beyond a reasonable doubt that he has violated a criminal statute. To take another example. Once such proof is established. It is the basis of ordered liberty. which Daniel Hannan may agree with me is nearly as easy to translate as Magna Carta. but the society sees the distribution of harmful narcotics—an enterprise that. but the fact that we engage in such analyses to justify regulating a great deal of innocent conduct is a heavy burden on liberty. Of course. Such offenses as murder. Yet lawmakers reason that a mere reporting requirement—describing the transaction and the ownership of the currency—is an acceptably small infringement on the individual’s liberty. a telltale sign of drug dealing. though. The most obvious example is the criminal law. American law bars “insider trading” in . and bearing false witness that are prohibited in virtually every civilization. Our penal statutes are designed to curb the liberty of wrongdoers so that responsible citizens can thrive. is the category of acts that are inherently evil. extinguishes. and stupefies a people. all in amounts of less than $10. there is a limitless array of legitimate reasons to engage in cash transactions in amounts slightly under $10. till each nation is reduced to nothing better than a flock of timid and industrious animals.. law’s hostility to liberty is precisely what we intend. the English do not have a cash-transaction reporting requirement as we have in the U. Obviously. Moreover. when its tendency is to become our willful master rather than our defense against oppression. To take a concrete example.) It is not that there is anything inherently wrong with depositing $9900. it must be a very particular kind of law: the kind that regulates government—that reins in state authority. and is not an undue record-keeping burden on financial institutions.000. one can imagine many perfectly innocent reasons for parsing these dealings into smaller amounts. This may be a reasonable cost/benefit analysis.” To be sure. law is a pillar of liberty—there can be no liberty without it.. in some contexts. albeit conduct that it has become common to punish with astounding severity. And if law is to enable freedom rather than impede it.S. An intention to conceal prodigious cash income. enervates. that delicate balance between unfettered license and civic obligation that any society must have to be truly free—to flourish. (While there are aggressive money-laundering laws in the U. consider the “structuring” of cash transactions: say. the category of acts that are not innately wrong but are proscribed because our lawmakers choose to prohibit them in the service of societal interests thought to be compelling. in the U. But then there is malum prohibitum. tips in favor of society’s compelling interest in discouraging and rooting out serious criminal enterprises. of which the government is the shepherd. Malum in se. such law is the enemy of freedom. is inferred from deposits just under the reporting threshold. breaking a large deposit of currency into several smaller deposits.000. But law can never be the foundation of a free society—that role is reserved for culture. This is as it should be. When law empowers government.S. and Australia. liberty is withdrawn for a period of time commensurate with the severity of the offense. If the money is legally possessed and disposed of. So the law imposes a reporting mandate on cash transactions of $10. is typically conducted in cash—as a grave problem. one involving even less serious criminality.which—to borrow again from de Tocqueville—it “compresses. the understanding that such transgressions will be justly punished is essential.000 or more. provided that the statutes in question—enacted by lawmakers who are politically accountable to the governed—truly reflect the society’s sense of serious wrong. In a free society. The ledger. it is said. the libertarian would understandably say that the relevant transactions are none of the government’s business.K. theft.

what is the limiting principle? The law is always supposed to have one. if the level-playing field means everyone must be equally blind. to broaden the universe of “insiders. But lawmakers.” The same Obama now endorses a racially discriminatory policy in the enforcement of our civil . why stop at the corporate insider? Why not rope in his brother-in-law. But Obama said he would raise the rates anyway . Inherently. It is in the malum prohibitum category that we begin to perceive the profound tension between law and liberty. populist rationales like “fairness” and “social justice” are a slippery slope—whether they are invoked to justify aggressive use of the law or. signaling what the best-informed traders think of a corporation’s prospects. this criminalization creep has become a feature of our system. which is effectively the imperial executive repeal of legislative enactments. a strong argument can be made that such trading benefits other market participants. are privy to business information prior to its being learned by the rest of the market—information that will affect the price of the company’s shares. This.securities. Senator Barack Obama famously called for higher tax rates. presidential campaign. as a matter of “fairness. it typically uses language that casts a net wider than the narrow misbehavior that provoked it to act in the first place. turns out to apply to an alarming number of people who are far from wealthy. and his broker. particularly for “the rich”—a descriptor that. after all. isn’t that something you’d like to know before buying in? Furthermore. beyond conduct whose criminalization was dubious in the first place. so that a person of average intelligence is on notice of what is prohibited. have assessed that the 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 theoretically be put on an equal informational footing and no insider may exploit his advantage for profit.S. It was pointed out to the candidate that lower tax rates often result in higher revenue collection by the Treasury. essentially delegating its law-making power to the executive on the assumption that prosecutors will exercise their discretion with reason and restraint. I can tell you that envelope-pushing is an occupational hazard. answerable to voters. . crusading prosecutors often endeavor to push this envelope. in Obama’s estimation. to all of whom he may have said something or other that provided a leg up over other investors? In fact. or are the aggressive prosecutions and harsh sentences more like a morality play—an indication of hostility against profit in the unpopular financial sector. Besides the sheer volume of statutes. meaning that the higher rates he championed would actually result in less money available for redistribution to the social welfare programs he holds dear. In fact. increasingly during the Obama administration. in the malum prohibitum realm. Is there. If “fairness” is the goal. it is quite another when inevitable overreach expands. involves purchases or sales of stock and other commercial paper by corporate officials who. because of their position. . the non-enforcement of law. It is an increasingly perilous enemy of liberty. When Congress writes criminal statutes. his golfing buddies. During the 2008 U. of course. a demonstration that we 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 to dump his shares. really a “level playing field” in stock trading? Is the point really to level the playing field. there is nothing wrong with trading on inside information. It is one thing when law prohibiting serious crime literally has a broader application than the lawmaker intended. In any event.” Having been a prosecutor for nearly twenty years.

and on whether the acts provide our grievance professionals with grounds to agitate against the society’s alleged racism. for them. not regulate thought. but for honoring it. what the state must do for you—which is to say. we have ceded to progressives Western society’s most influential institutions: the universities. sexism. penance for the indelible stain of racism. based on the class of victim. the government and its ever-metastasizing. however. We seem to have forgotten a central truth Paul Johnson brought into such stark relief in his magisterial history of the American people: Americans were a distinct cultural phenomenon for well over a century before shots rang out at Lexington and Concord—long before there was a Constitution and a federal “rule of law.” Not long ago. they see the traditional rights to be free from government demands and to have government restricted to its expressly enumerated powers as nuisances. rather than the effect. This is especially so in the United States. For two generations.. Culturally. what the state must compel you to . But now. The president purports to have the power to grant immunity for prospective violations of law. Why are they succeeding today where they have failed in the past? The most significant explanation lies in the centrality of culture. not societal energizers. or not. acts are investigated. Similarly violative of the Constitution’s command that government provide equal protection under the law is the Obama administration’s waiver policy. and limited government shaped our law and our politics—not the other way around. This is a novel privilege generally extended to cronies and important electoral constituencies. In contrast to the Right’s emphasis on liberty.e. we did not obsess over their motivation.” yet one whose most dreadful provisions are specifically designed not to kick in until after his reelection has been secured. The point is to justify ever more law designed to socialize us. focusing on what the state cannot do to you. Although the laws are racially neutral on their face. Under Obama.rights laws: If the victim in a voter intimidation case is white and the aggressor is black. It is still called “the rule of law. where we venerate our Constitution as if it were the cause. Obama’s Justice Department appointees theorize that they are not so much law as narrative. slave-holding white men of a colonialist bent. the administration has sued the state of Arizona for attempting to enforce the federal immigration laws. the tool by which agenda-driven ideologues sculpt a society. free markets. of our freedom. not necessities. We are law-obsessed in the West. in particular. the arts. and the like. Islamophobia. This is the increasingly common role of law: not sentry of liberty but agent of social change. his policy of encouraging illegal immigration. For the modern Left. ever-less-accountable bureaucracy. Not for flouting the law. the individual’s freedom is a relic of a bygone time. rather than unleash its potential. progressives are a different breed. In addition. by contrast. homophobia. Analogous reasoning informs the burgeoning field of “hate crime. a state that embraces Congress’s law is nonetheless penalized for failing to defer to the executive’s policy of non-enforcement—i.” but it is really the rule of lawyers. since the law’s role in a free society is to promote order. the dispositive legal question when state law collided with Leviathan’s statutes was whether Congress had intended to preempt the states from enacting contradictory law. the case is not prosecuted. we prosecuted criminal acts. consequently. would be prohibitively expensive or would provide a pre-election window into the punitive consequences of Obamacare—the president’s signature “achievement.” Our commitment to individual liberty. protecting all Americans. They are social engineers. when life was supposedly simpler and dominated by sexist. Compliance. Until four years ago. not protect our liberty. the Left’s métier is rights. the press.

Of course. of culture’s dominance over law. There is perhaps no better reflection of this dynamic.” It mandated the promotion of Islamic education. But. on “the assumption of a sole and exclusive truth in politics. the State Department. The new constitution extolled the virtues of “rightful jehad” (also known as jihad) in its very first sentence. dictated that all public ministers swear “to obey and safeguard the provisions of the sacred religion of Islam”.” “natural right” of all human beings. As the State Department knew. financial. we can vote the bums out. When it entered into force in January 2004. was ecstatic. then the top U. cooed that the new constitution “set forth parallel commitments to Islam and to human rights. this collective purpose. not unleashing its potential. than life in Afghanistan under its new. Now what does that sound like? For anyone paying attention during the last two years. Islamic supremacism is implemented through sharia.S. The late. Afghans would not tolerate 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 to Islamic principles. in lieu of any civil legal training. the document’s shadow author. again. More accurately. Abdul Rahman. It was rife with Western law: sonorous paeans to universal freedom and equality. sharia is Islam’s totalitarian framework for how human life is to be lived. These social-engineering schemes take root only because society has become habituated to them. vastly underappreciated. and military down to hygiene and relations between the sexes. and its third announced to the world that. its second established Islam as the official “religion of the state”. law is enacted by politically accountable officials—usually. with emphasis on the collective (the ummah) and instruction on all matters great and small. “no law can be contrary to the beliefs and provisions of the sacred religion of Islam. the Islamist wants his rule of law. Law is the compulsive device by which such schemes are carried out.S. from political.A.” The progressive would have his truth transformed into society’s “absolute collective purpose. a Christian who had converted from Islam years earlier. which is Middle Eastern Islam’s sole and exclusive truth. Its first article declared a sovereign “Islamic Republic”. Zalmay Khalilzad. political scientist Jacob Lieb Talmon coined the phrase “totalitarian democracy” to describe the form of “political Messianism” that infected free societies during the twentieth century.” Within a few months. classical Islam’s legal code.” “Parallel” was an interesting choice of words. too—but for the purpose of inhibiting the population. emissary in the region. It was based. within Afghanistan. Law becomes the mechanism by which dissenters are trained and disciplined until the need for coercion fades away—because alternatives have been eliminated. Did the State Department figure a few tropes about human rights law would change the Afghans over time? That seems unlikely: The constitution expressly provided that one of its terms could never be altered: “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic. was imprisoned and put on trial for the capital offense of . It inscribed supremacist scripture on the national flag.” constitution.give to me. Liberty itself was portrayed as the “inviolable. to be schooled exclusively in sharia. and required that Islamic traditions be honored in family formation and child-rearing. it sounds like the “Arab Spring”: the ascendancy of Islamic supremacism. as they have told us in poll after poll and now election after election.” The notion of liberty is thus turned on its head: Freedom becomes submission to this exclusive truth. And his brand of sharia is being imposed because upwards of two-thirds of the population wants it. habituation is the function of culture. In the main. and permitted the judiciary. “Made in the U. not law. he asserted.

government spokesman spluttered. the resolution that would prohibit critical inquiry into the supremacist ideology. .S. Five years later. as a U. Sa’id Musa. the Obama administration has been colluding for nearly four years with the Organization of Islamic Cooperation to codify a global sharia suppression standard making it unlawful to engage in speech that would incite mere “hostility to religion. an Afghan Red Cross worker. its unvarnished command that Congress could “make no law . “freedom of worship [and] freedom of expression . . more from this author This article originally appeared in The New Criterion. In reporting the story. had Western coalition forces not sacrificed blood and treasure only to usher in a constitution under which the Taliban itself could have governed without changing a comma.” Yet. Volume 31 January 2013. rooted in fundamentalist Islam.apostacizing from Islam. It becomes an instrument of oppression. not a pillar of liberty. Karzai’s office announced that he had magnanimously commuted the prison sentence of a nineteen-year-old woman serving a twelve-year term imposed after she was convicted of having sex out of wedlock—with a relative who had raped her. But for present purposes. not the government. as if someone in Afghanistan’s sharia-steeped judiciary must have forgotten that. For the promotion of liberty.” In effect.” Contrast immutable Afghanistan with wavering America. its law will rein in the public. The oldest lie in the book was used to justify his extradition: the defendant was pronounced non compos mentis—the rabid public would accept no other explanation for overlooking a conversion away from Islam. on page 28 . If a culture is authoritarian or becomes authoritarian. have Abdul Rahman quietly whisked out of the country before the death sentence could be executed. .” Only after some frenzied arm-twisting did Hamid Kharzai. abridging the freedom of speech. the Afghan president dependent on the West for his survival. it is hard to imagine a better law than the First Amendment: specifically. McCarthy is the author of the The Grand Jihad (Encounter). Such stories could fill a book. Andrew C. And just last year. not the other way around. the Associated Press noted in passing that “about half of the 300 to 400 women jailed in Afghanistan are imprisoned for so-called ‘moral crimes’ such as sex outside marriage. the point is that law follows culture. It would make it illegal for us to defend ourselves—the most vital natural right of a free people. also had to be smuggled out of the country during a death-penalty case over his conversion to Christianity. it might have been amusing to watch State Department officials and European ministers wring their hands as if there had been some terrible misunderstanding. . Karzai’s rationale for the pardon? The woman had cured her indiscretion by agreeing to marry the rapist. whose child she had borne during her jail term. Had the stakes not been life and death. are bedrock principles of democracy . . The embarrassing episode resulted in exactly zero movement to repeal the apostasy law in favor of the constitution’s ostensible safeguarding of freedom of conscience. . that are enshrined in the Afghan constitution. or running away from their husbands. that openly calls for destruction of the West.

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