The adjectives “Orwellian” and “Machiavellian” are today often used to describe governmental abuse of power. Unfortunately, many believe that George Orwell and Niccolo Machiavelli were advocates of such ruthless and unscrupulous political behavior. Those of us, who have actually read these authors, understand that they were describing, not advocating, the dystopian societies and nefarious methods of Lenin and Stalin (Orwell) and the Italian Borgias (Machiavelli). Maybe another adjective should be used to describe recent events occurring under our current domestic regime. Here is a vote for “Randian.”
One of the protagonists of Ayn Rand’s novel Atlas Shrugged is a business owner and entrepreneur she names Hank Rearden. In one scene that occurs after he is charged with violating an obscure trade regulation, Rearden questions the glee expressed by Ferris, a government apparatchik, over “finding something on” him. Ferris responds:
“Do you really think that we want those laws to be observed? We want them broken. You better get it straight that it is not a bunch of boy scouts you are up against — then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you had better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of lawbreakers — and then you cash in on guilt. Now that is the system, that is the game, once you understand it, you’ll be much easier to deal with.” Ayn Rand, Atlas Shrugged (1957, 25th Anniversary Ed. 1992, p. 411). (Emphasis added)
The January 22, 2022 Wall Street Journal published an editorial that stated: “In the 2019 United States Code, [the Heritage Foundation and George Mason University’s Mercatus Center] found 1,510 criminal sections. By examining some of those sections at random, they estimated that they encompass 5,199 crimes in total. The Heritage Foundation report notes that ‘there is no single place where any citizen can go to learn’ all federal criminal laws, and even if there were, some ‘are so vague that . . . no reasonable person could understand what they mean.”
“But even when it comes to conduct everyone agrees should be criminal, the inexorable expansion of the Code has serious consequences for justice and federalism. The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.
“Both political parties should recognize the risks of an ever-expanding roster of federal crimes, which invites abuse by prosecutors. How about a commitment by Congress to re-examine the necessity of an existing crime for every new one it creates?”
The Heritage Foundation and the Mercatus Center appear to have done a large part of the job for identifying obscure criminal statutes. But what about the Code of Federal Regulations (“CFRs”)? The offices of U. S. Representatives and Senators have become, for most members, a sinecure; that is, a position of being paid for status, rather doing productive work. Congress has delegated broad powers in making regulations, even powers to criminalize conduct, to the various boards, commissions, and agencies created by a myriad of statutes. The so-called experts that run those organizations can declare citizens to become felons, without express Congressional approval, by criminalizing conduct of which they disapprove.
The proliferation of criminal cases brought against former President Donald Trump appears to be politically motivated. The “progressive” leftists are doing everything possible to keep Trump from regaining the Presidency. The Democratic Party, the party that once produced such principled political figures like Franklin Roosevelt, Harry Truman, and John F. Kennedy (whether one would agree with all their policies), is now stuck with a prospective ticket of an impaired stooge of the left for President and an incompetent for a possible successor.
Can Trump still run and win this November? Constitutionally and legally, he can. All criminal convictions (excepting minor ones like traffic violations) impose certain civil and social disabilities, regardless whether there is imprisonment or other punishments such as fines. A Trump conviction has no effect on voters who would not vote for him under any circumstances. Among his fans, the opposite is the same. How about swing voters? Many, even those who lean to the left, may be outraged by the apparent Machiavellian-Orwellian-Randian abuse of the legal systems, and will be more inclined to vote for Trump. There will be some, perhaps not a few, who cannot bring themselves to vote for one convicted of a crime, whatever it might be.
At this point it’s still early days, but stay tuned.
Notes: The current so-called “hush money trial” was held in a New York court and rules of decision and procedure under New York law, not federal law. The above analysis is no different.
For additional reading on what could be termed “mass criminalization” I recommend Three Felonies a Day by Harvey Silverglate (2009). Mr. Silverglate is a lawyer based in Massachusetts, who has extensive “white collar” criminal defense experience. Silverglate, along with University of Pennsylvania professor Alan Charles Kors, founded the Foundation for Individual Rights and Expression(www.thefire.org), and organization that advocates for and defends students and faculty members, journalists, and others in free speech and expression issues (regardless of their place on the political spectrum). Silverglate’s thesis is that if politicians in control of the government they can always find a crime to charge dissenters with and thus discredit or eliminate them. Not known whether Silverglate read Rand’s work, but the Trump prosecution appear to bear out her ideas.
Also see Howard, Philip K. (1995). The Death of Common Sense: How Law is Suffocating America. New York: Random House.
One reply on “Randian?”
This is a very interesting read. I think yesterday’s verdict and the prosecution which sought the verdict, could be the start of the end to a “fair trial” system. I also think this event could convivence a lot of ordinary people to realized that government left unchecked is fatal to our Republic.
Don Miller