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When Justice Becomes Tyranny: The Erosion of American Liberty
Imagine waking up to find armed federal agents raiding your home, seizing your life savings, and charging you with crimes you never knew existed-all without presenting evidence or allowing you to defend yourself. This isn't a dystopian novel; it's the reality facing countless Americans as our legal system transforms from shield to weapon. "The Tyranny of Good Intentions" exposes how prosecutors, bureaucrats, and politicians have systematically dismantled the Rights of Englishmen that once protected every citizen from arbitrary government power.
This book has become required reading in law schools nationwide, with Justice Antonin Scalia citing its arguments in Supreme Court opinions. Even celebrities like Russell Brand have praised its prescient warnings about government overreach. As civil liberties continue eroding under both Republican and Democratic administrations, the book's cultural impact has only grown-Northwestern University researchers found innocent defendants now have a 25-37% chance of wrongful conviction, while the guilty have only a 10-13% chance of acquittal. With America imprisoning more of its citizens than any other nation on earth, understanding how we lost our legal protections has never been more urgent.
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The Shield of Liberty: Our Anglo-Saxon Legal Heritage
The Rights of Englishmen represent humanity's greatest achievement in the struggle against tyranny-a set of legal principles that protect both rich and poor from arbitrary government power. Unlike the Marxist view that law merely serves ruling class interests, the English legal tradition eliminated status-based justice, applying law equally regardless of wealth or position. This system emerged from centuries of struggle for people's sovereignty over law, from King Alfred's ninth-century codification through the Magna Carta to the Glorious Revolution.
While continental Europe followed Justinian's principle that "command of the King has the force of law," England developed a system where law flows from the people. This distinction traces to Anglo-Saxon tribal governance described by Tacitus, where communities deliberated important matters and leaders ruled by persuasion rather than command.
These Rights of Englishmen include essential protections: no crime without intent (requiring a "vicious will"), certainty in law, prohibition of ex post facto laws, warrant requirements ("a man's house is his castle"), protection against self-incrimination (ending torture), due process, habeas corpus, and prosecutorial restraint.
Sir Edward Coke famously confronted King James I in 1616, insisting the king couldn't halt court proceedings, later championing parliamentary powers against royal absolutism. Despite imprisonment in the Tower of London, Coke persisted in defending these liberties, leading to the 1628 Petition of Right reaffirming Magna Carta principles.
When American colonists declared independence, they weren't rejecting English law but asserting their rights as Englishmen against King George III's violations. The Constitution and Bill of Rights codified these protections, creating a system where government serves the people rather than ruling over them. But this precious inheritance now faces extinction through a combination of good intentions, career ambitions, and philosophical shifts that have transformed law from shield to weapon.
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Blackstone vs. Bentham: The Philosophical Battle for Law's Soul
The erosion of American liberty began with a philosophical battle between two legal titans: William Blackstone and Jeremy Bentham. Blackstone's "Commentaries on the Laws of England" articulated law as a shield protecting individuals from government power. His work profoundly influenced America's founders-according to historian Daniel Boorstin, "no other book except the Bible has played so great a role" in shaping American jurisprudence.
Blackstone taught that law rests in the people as a shield against tyranny, emphasizing the Rights of Englishmen as essential protections against government overreach. His approach recognized human fallibility and the dangers of concentrated power, favoring incremental legal development over radical reform.
In 1776-the same year Americans declared independence based on their rights as Englishmen-Jeremy Bentham published an anonymous tract attacking Blackstone's principles. Bentham dismissed these rights as "nonsense on stilts," arguing that government should pursue "the greatest happiness for the greatest number" rather than protecting individual liberties. His utilitarian philosophy favored government authority and limitless powers of reason over Blackstone's cautious incrementalism.
After Bentham's death in 1832, his followers reshaped English law through reform bills that received royal assent the very next day. His influence gradually spread to America, where his utilitarian calculus would ultimately dissect the Rights of Englishmen from U.S. law. This transformation wasn't a frontal assault but a piecemeal erosion, with Benthamite concepts gradually grafted onto the legal tree of liberty.
The philosophical shift from Blackstone to Bentham fundamentally changed how Americans understand law's purpose. Rather than protecting citizens from government power, law increasingly became a tool for implementing government policies and pursuing politically defined "greater goods." This shift opened the door to prosecutorial abuses, retroactive legislation, and the criminalization of accidents and paperwork errors-all justified by good intentions but resulting in profound injustice.
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No Crime Without Intent: The Cornerstone of Justice Crumbles
The principle that "no crime without intent" forms the bedrock of English law, preventing prosecution for accidental acts and shielding citizens from retroactive laws. This ancient maxim holds that criminality requires both a forbidden act and a "vicious will," as Blackstone insisted. Punishing unintended actions is both unjust and inefficient-it undermines the moral authority of law, wastes resources, and creates insecurity by giving prosecutors unfettered discretion to target anyone.
Yet in contemporary America, this fundamental right has eroded dramatically. When the Exxon Valdez oil tanker accidentally ran aground in Alaska's Prince William Sound in 1989, the Justice Department criminalized the accident through "innovative legal approaches." Despite knowing Exxon had no criminal intent to pollute, prosecutors charged the company with felonies under statutes meant for deliberate polluters. They absurdly claimed Exxon had "willfully and knowingly" hired incompetent people and spilled oil to kill migratory birds without a license. This Soviet-style prosecution allowed the government to extort a $125 million criminal fine from Exxon, establishing the dangerous precedent that accidents could be treated as crimes.
Charles Keating fell victim to a modern bill of attainder when prosecutors invented a crime that didn't exist until he was charged. As chairman of American Continental Corporation (ACC), which owned Lincoln Savings and Loan, Keating became a scapegoat when ACC bonds lost value during the real estate collapse of the late 1980s. Though ACC's bond prospectuses clearly stated they weren't federally insured, prosecutors created a "hybrid" legal theory that abandoned both intent requirements and personal responsibility. Judge Lance Ito allowed this "crime out of thin air," and a California appellate court upheld it based on a law passed after Keating's conviction-a clear violation of constitutional prohibitions against ex post facto laws.
Even establishment figures aren't immune. Clark Clifford, who served presidents from Truman to Carter, faced indictments alleging he accepted bribes to conceal BCCI's ownership of First American Bankshares. Despite freezing their assets and public humiliation, prosecutors had no victims or evidence-just theory. Manhattan DA Morgenthau's $20 million investigation produced nothing substantial, and the jury quickly acquitted Clifford's protege Robert Altman, with jurors feeling "insulted" by the prosecutor's case.
The Supreme Court has largely abandoned the mens rea requirement despite Justice Robert Jackson's valiant defense in the 1952 Morissette case. Jackson, familiar with totalitarian corruption of law from his role as Nuremberg prosecutor, wrote that criminal intent is "no provincial or transient notion" but "universal and persistent in mature systems of law." Yet by 1957, Justice Douglas dismissed Blackstone's principle that "a vicious will" is necessary for crime. As Harvard scholar Henry Hart lamented, procedural safeguards become meaningless "if anything whatever can be made a crime."
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The Return of Retroactive Law: Punishing Yesterday's Legal Actions
The constitutional prohibition against retroactive liability remains in text but not in practice. The damage began with 1797's Calder v. Bull, when the Supreme Court wrongly limited ex post facto clauses to criminal cases. Despite occasional attempts by justices to correct this error, retroactive civil liability has become commonplace in American law.
CERCLA (Superfund) exemplifies this problem. Passed hastily in 1980, the bill emerged without proper hearings despite warnings about massive retroactive liability. The statute never clearly defined liable parties, creating what one congressman called "a welfare relief act for lawyers." Reagan administration lawyers encouraged courts to apply "strict, joint and several, retroactive liability"-though these words don't appear in the statute. This meant total retroactive liability for anyone connected with waste dumps, regardless of the legality of their actions when they occurred. ABA chairman George Freeman called this "without precedent in the civilized world."
Superfund has ruined countless businesses while enriching lawyers. Banks that foreclosed on businesses linked to waste sites, insurance companies, and even a pizzeria identified by its discarded boxes have been held liable. The EPA has pursued companies for actions taken decades before the law existed, creating the field of "insurance archaeologists" who trace liability through corporate predecessors.
The Love Canal hysteria drove Superfund's passage, though subsequent scientific studies found no reliable evidence of increased health risks. Despite massive expenditures from innocent parties, studies show Superfund has delivered little actual risk reduction while destroying the connection between law and justice.
Prosecutors now use similar theories to create retroactive criminal offenses. In the Microsoft antitrust case, the government applied novel interpretations of century-old laws to target practices that were legal when undertaken. The decade-long legal battle cost the company its technological edge, harming the American economy, though the settlement ultimately required only minor adjustments to Microsoft's business practices.
This retroactive application of law creates profound uncertainty for businesses and individuals alike. How can citizens order their affairs when today's legal actions might become tomorrow's crimes? The prohibition against ex post facto laws was considered so fundamental by the Founders that they included it twice in the Constitution-once restricting Congress and once the states. Yet this essential protection has been hollowed out by courts willing to defer to government agencies' creative reinterpretations of existing statutes.
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Modern Torture: How Plea Bargaining Replaced the Search for Truth
Justice exists to serve truth. The moral authority of any justice system depends on establishing the truth or falsity of charges against the accused. When truth is the focus, even the guilty can respect the process that led to their convictions. This contrasts with plea bargaining, which breeds cynicism and alienation by separating justice from truth-seeking.
English jurists distrusted preemptive guilty pleas, presuming they resulted from coercion, torture, or unethical promises. They recognized multiple reasons someone might falsely plead guilty: bribery, fear of another's wrath, physical deprivation, torture, or threats against family. Such pleas prevented the judicial search for truth. Similarly, they viewed confessions implicating accomplices with suspicion, considering them "false and malicious accusations of desperate villains."
Today, plea bargaining has displaced jury trials as America's dominant method of criminal resolution, with 90-95% of all criminal cases settled this way. Yale law professor John Langbein notes the "chilling" parallels between modern plea bargaining and ancient judicial torture. The medieval maxim "Confession is the queen of proof" has replaced jury trials for most criminal cases.
The process works through terror, not truth-seeking. Prosecutors wield intimidating power against often frightened defendants. People's varying ability to withstand anxiety affects their decisions-some prefer plea deals to control their fate and avoid the witness stand, regardless of innocence.
Both sides avoid trials due to uncertainty, time constraints, and career concerns. Defense attorneys may prefer negotiation to confrontation, fearing damaged relationships with prosecutors. Prosecutors build conviction rates through pleas. The result: accused persons admit to fictional offenses to avoid being tried for real ones.
This system enables prosecutors to build cases on speculation rather than evidence, particularly for complex business crimes. Prosecutors leak indictment news to the media, tarnishing the accused's reputation. They threaten maximum penalties, asset freezes, and investigations of family members. Under this Kafkaesque pressure, defendants often surrender, authorizing their lawyers to negotiate deals that may include testifying against others or accepting lesser charges.
Michael Milken's case exemplifies these tactics. This financial innovator revolutionized markets by developing "junk bonds" that provided capital to promising companies traditional Wall Street wouldn't touch. His success made him vulnerable-Drexel Burnham Lambert became Wall Street's most profitable firm by 1986, earning $545.5 million and ruffling establishment feathers.
Prosecutor Rudolph Giuliani exploited this vulnerability, using media to "do the job for me." Prosecutors criminalized technical offenses that had never been charged as crimes before, with assistant U.S. attorney John Carroll later admitting they used "novel" prosecution theories. Even after Milken agreed to plead guilty to six invented counts, Judge Kimba Wood gave him an unprecedented ten-year sentence (later reduced to two years) for charges that had never before carried prison time.
The case demonstrates that if government coercion can "roll" a billionaire like Milken, ordinary citizens have only their anonymity for protection. Columbia law professor H. Richard Uviller suggests "more innocent people are in prison on their own guilty pleas...than by false verdicts of conviction."
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The Attorney-Client Privilege Under Siege
The attorney-client privilege, with roots in ancient Rome and revered by English lawyers like Blackstone, guarantees confidentiality between client and attorney, ensuring aggressive defense against government prosecution. Without this protection, lawyers become mere government agents, as in Soviet courts. This sacred privilege promotes equality before the law and judicial efficiency by allowing clients complete frankness with their legal counsel.
Despite withstanding Jeremy Bentham's nineteenth-century attacks, the attorney-client privilege faces modern erosion. Defense attorneys now warn that "consulting a lawyer could be dangerous to your safety," as aggressive prosecutors transform defense lawyers into potential witnesses against their clients. Alexis de Tocqueville's belief that American lawyers would never tolerate oppression has proven naive in today's legal environment.
The government's 1990 shakedown of Wall Street law firm Kaye, Scholer demonstrates how prosecutorial power can crack even pillars of the legal establishment. Facing frozen assets and a $275 million lawsuit for not informing on client Charles Keating and Lincoln Savings and Loan, the 400-attorney firm settled for $41 million despite prominent ethicists arguing that attorney-client privilege prevented such disclosure.
The government froze not only the firm's assets but also the personal assets of all partners, most uninvolved in the Keating case. This pressure, combined with client fears and threatened credit lines, forced capitulation. The New York City Bar Association condemned this as a misuse of power that deprived the firm of its right to defend itself on merits, calling asset freezes "of questionable constitutionality" and destructive to due process.
The federal government has increasingly exempted itself from normal legal system rules. Under both Bush and Clinton administrations, the Justice Department released its attorneys from state ethical rules preventing direct communication with represented adversaries. This creates an uneven playing field where government prosecutors can "fight dirty" while defense attorneys remain bound by strict ethical norms.
The Supreme Court further damaged the privilege in 1989 by ruling that pretrial asset forfeitures don't violate Sixth Amendment rights even when preventing defendants from paying defense lawyers. Justice Blackmun's dissent warned this allows government to "beggar those it prosecutes" and tempts authorities to target particularly talented defense attorneys.
The case of attorney Lynne Stewart exemplifies this erosion. Stewart was sentenced to twenty-eight months in prison merely for representing her client, a suspected terrorist. Prosecutors required her to waive attorney-client privilege and permit government monitoring of client conversations. When Stewart violated these unconstitutional restrictions, prosecutors charged her with "material support to a terrorist group" based on a "law" consisting merely of a prosecutor's letter. Her Arab translator was convicted by association despite signing no agreement. This prosecution represented the government's opening salvo in depriving "terrorist suspects" of constitutional protections.
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Asset Forfeiture: The New Highway Robbery
On October 2, 1992, armed deputies broke into Donald Scott's Malibu estate and shot him dead. Scott had committed no crime, but Deputy Gary Spencer had targeted his 200-acre oceanfront property for asset forfeiture using trumped-up drug charges. Despite no evidence of marijuana, Spencer had planned the raid for over a year, armed with property appraisals and bragging he could seize the estate with just fourteen plants. District Attorney Bradbury's investigation revealed a conspiracy to confiscate Scott's property, which bordered federal park land coveted by officials for years.
The Comprehensive Forfeiture Act of 1984 radically expanded government seizure powers, allowing confiscation of property merely suspected of connection to drugs. This law creates perverse incentives as seized assets directly fund law enforcement agencies rather than government treasuries. Justice Department memos even urged increasing "forfeiture income," skewing priorities toward asset seizure over criminal prosecution. Police now drive seized luxury cars and enjoy other perks from confiscations, creating a system where law enforcement benefits from rather than eliminates the drug trade.
The 1984 forfeiture law targets property, not crime, allowing seizure of assets from innocent owners whose property was used without their knowledge or consent in alleged offenses. Justice Bradley warned in 1886 that tyrannical law often begins with "silent approaches and slight deviations from legal modes of procedure," requiring courts to "be watchful for the constitutional rights of the citizen." By 1928, Justice Brandeis said Boyd "will be remembered as long as civil liberty lives in the U.S." Yet today, Boyd is dismissed as mere "property worship" while the Reagan-era asset forfeiture law has effectively killed civil liberty, allowing punishment without trial.
The regime contravenes multiple Rights of Englishmen, including presumption of innocence, protection from unreasonable seizures, due process, and protection from excessive punishment. While Britain rejected similar "draconian power" as "out of sorts with anything we have hitherto done," the U.S. Supreme Court in Bennis v. Michigan (1996) endorsed the resurrection of the ancient "deodand" concept that infers guilt to property.
Dr. Richard Lowe, a small-town Alabama physician, had his $3 million life savings seized despite no wrongdoing. Willie Jones, a black nurseryman, lost his cash when an airline ticket agent reported him for paying with cash. The DEA maintains confiscation squads at airports, paying informers 10% of seized assets. House Judiciary Committee Chairman Henry Hyde struggled to rein in these powers, questioning whether we've birthed "an American police state."
The privileged class of law enforcement remains protected-as when Assistant U.S. Attorney Leslie Ohta's property was exempted from forfeiture when her son sold drugs from her car, while others like 83-year-old Paul Derbacher lost homes for relatives' drug offenses. With the law cut down, Americans stand defenseless against modern highway robbery conducted under color of law.
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From Democracy to Administrative State: The Death of Constitutional Order
The Founding Fathers made law accountable to the people by vesting "All legislative Powers" exclusively in Congress. This constitutional arrangement reflects the Anglo-Saxon principle that law resides in people's hearts rather than the king's mouth. The legal maxim "Delegata potestas non potest delegari" prohibits Congress from delegating its lawmaking power, ensuring lawmakers remain accountable and preventing them from avoiding responsibility for burdensome laws.
This principle has deep historical foundations. Locke insisted people could only be bound by laws made by elected representatives who cannot "make legislators" by placing lawmaking authority "in other hands." Montesquieu warned that when lawmakers are simultaneously law enforcers, "there can be no liberty." Tocqueville stressed that keeping lawmaking power in the legislature forced authorities to remember their "popular origins."
Today, most rules governing Americans don't come from accountable legislators. As David Schoenbrod shows in "Power Without Responsibility," Americans are no longer governed by statutory law from accountable legislators. Congressional statutes have become mere opportunities for bureaucrats to legislate, making it misleading to call Congress the legislative branch when the most powerful lawmakers are entrenched in federal bureaucracies.
This transformation occurred as people, secure in law, lost sight of its importance while facing other threats. The Great Depression created fear of unemployment and poverty in old age. Government activists argued that Congress couldn't manage necessary interventions. In the 1930s, Harvard law professor Felix Frankfurter's circle pushed for transferring legislative power to executive agencies. Bills written by the executive branch were passed "at an assembly line pace" without members even reading them.
For over a century, the nondelegation doctrine was a widely shared constitutional principle. In 1892, Justice Harlan called it "vital to the integrity" of constitutional government. But during the New Deal, delegating lawmaking power to administrative agencies became central to "progress." Though the Supreme Court initially resisted, it yielded under Roosevelt's court-packing pressure.
James Landis, who became Harvard Law School's youngest dean after chairing the SEC, justified broad delegations based on bureaucratic expertise. He celebrated the administrative state and criticized Sutherland's distrust of unaccountable bureaucratic power. Landis believed wisdom resided in bureaucratic expertise rather than "procrustean" constitutional standards favoring liberty.
The massive delegation to Roosevelt occurred the same year the German Reichstag delegated all powers to Hitler, prompting Mussolini to call Roosevelt a dictator. Today's bureaucrats have vast discretion in defining law, dispensing with principles of criminal intent and prohibitions on retroactive crimes. The Mills family case exemplifies this tyranny-they were imprisoned for putting clean dirt on dry land arbitrarily designated as "wetlands" despite the Clean Water Act making no reference to wetlands.
We've lost constitutional order when bureaucrats can usurp prohibited powers and impose their own laws, even taxation, with our system now resembling the German Enabling Act that transferred legislative power to Hitler's executive branch.
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Liberty's Last Stand: The War on Terror and the Constitution
The Bush administration exploited the 9/11 attacks to launch an unprecedented assault on civil liberties under the guise of fighting terrorism. Without defining "terrorist," the government claimed discretionary power to suspend procedural due process rights. Congress hastily passed the USA PATRIOT Act (98-1 in Senate, 357-66 in House) with legislation that had been prepared before the attacks, making permanent provisions that infringed on constitutional protections despite court challenges and hundreds of local resolutions condemning it.
The administration's assault on constitutional principles reached shocking levels, with signing statements functioning as illegal line-item vetoes that assert exclusive executive authority. These statements have no constitutional basis yet are increasingly used to redefine legislative powers. The administration's refusal to abide by the rule of law presents a frightening prospect for American liberty.
The case of computer science professor Sami Al-Arian exemplifies law weaponized for persecution. Al-Arian gained prominence as a voice for even-handed Middle East policy until the post-9/11 hysteria created an opportunity to silence him. Despite no evidence of wrongdoing, he was held in solitary confinement for two and a half years under conditions Amnesty International called "gratuitously punitive." After a jury acquitted him on all serious charges, prosecutors forced him into a plea agreement they subsequently violated. When Al-Arian refused to testify in an unrelated case (which violated his plea agreement), he received additional contempt charges.
In May 2007, Bush signed the National Security and Homeland Security Presidential Directive, which effectively concentrates all governmental power in the president's hands during a "catastrophic emergency." This directive implements the "unitary executive" doctrine championed by the Federalist Society, claiming presidential power is completely separate from and not subject to legislative or judicial checks. This directly contradicts the constitutional separation of powers established by the Founders, who, as Justice Brandeis explained, designed this system "not to promote efficiency but to preclude the exercise of arbitrary power."
The assault on civil liberties has continued under subsequent administrations. The Obama administration expanded warrantless surveillance and drone strikes, while the Trump administration pushed executive power to new extremes. Many thoughtful Americans believe the "war on terror" is providing cover for what former Nixon White House counsel John Dean calls an assault on liberty by "authoritarian conservatives."
With detention centers being built by Halliburton, an administration claiming power to suspend habeas corpus, and unprecedented executive overreach, American liberty faces unprecedented danger from those holding the reins of power. The transformation from a legislative to an administrative state has undermined the Constitution's prohibition against delegating lawmaking power to executive agencies. This hollowing of democracy resembles Germany's 1933 Enabling Act that gave Hitler dictatorial power.
As Sir Thomas More warned in Robert Bolt's "A Man for All Seasons": "And when the last law was down, and the Devil turned round on you-where would you hide, the laws all being flat?... Yes, I'd give the Devil benefit of law, for my own safety's sake."
