"The framers of the constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty." ~ Justice William O. Douglas
Malum Prohibitum, Ad Nauseum
Column by Paul Hein.
Exclusive to STR
“I’ve got a tremendous idea,” you announce to your colleagues. “Wouldn’t it be great if everyone had health insurance?”
“You bet,” they agree--at least most of them.
“Well, let’s make everybody buy it. If some can’t afford it, we’ll subsidize it, somehow, and if they refuse, we’ll figure out a way to punish them for their selfishness.”
“Okay, consider it done.”
Or: You are outdoors, looking at a stretch of road. It’s reasonably straight, with only a few houses and business along the section you’re considering.
“What do you think? Fifty miles per hour about right here?”
“Well, I don’t know. I think 45 would be safer.”
“Okay, 45 it is. What shall we charge people who drive faster than that?”
“How about a hundred bucks?”
“This is a pretty affluent neighborhood. What about 200?”
“Okay, consider it done.”
If these opinions were offered by your neighbors, they would be little more than that: opinions. Everybody has them, and there’s nothing wrong with that.
But if these opinions are written down by people calling themselves “legislators,” then, magically, they become “law”!
That wouldn’t be so bad if the “laws” were just recommendations by these officials, but it’s more than that. If you were, God forbid, to violate one of these “laws,” you could be punished with fines, or even imprisonment, because you would have “broken the law,” and thus be subject to the “appropriate” punishment. You would have committed a crime! Your opinion would have differed from theirs!
In the classic sense, a crime is committed only if someone’s rights are violated. In other words, if you injure someone, or damage his property, you’ve committed a crime. It’s called malum in se, or “evil in itself.” The victim of your criminal act can bring you into court, and the government can dole out your punishment. Indeed, punishing criminals is one of government’s few proper activities.
If you don’t buy insurance, or if you drive 48 miles per hour in a zone marked Speed Limit 45 MPH, whose rights have been violated? Who has been injured, or suffered property damage? Yet you can still be charged with a “crime,” and fined, or even imprisoned. This is malum prohibitum, or “evil because forbidden.” Using the Latin phrase makes it much more impressive, as well as obscuring the fact that the “crime” is simply your preferring your own opinion to some stranger's.
The difference is very significant. It means that, although you have harmed no one, and damaged no one’s property, you can still be punished--severely--giving your own opinions precedent over the opinions of the legislators. We have all heard of cases wherein the police, at an unconstitutional checkpoint, have discovered a marijuana cigarette butt in a car, and wrought havoc upon the car’s owner, although he hadn’t smoked the cigarette, and might not have known it was there. Ironically, in such unconstitutional stops, searches, and seizures, the police themselves are committing a malum prohibitum, because their actions are in violation of the opinions of the Founding Fathers as expressed in the Fourth Amendment. And if they confiscate property, levy fines, or make arrests based upon these unconstitutional actions, their crime is actually malum in se, for they have violated the rights of their victim. Good luck in suing them!
How many people are in prison today without having committed an actual crime? The number must be staggering. It may be true that many people violate traffic and drug “laws,” recognizing that they are hurting nobody (and if they did hurt someone, there are plenty of laws to deal with that already) but, regrettably, these same people may acknowledge that if caught, they can expect to be punished; and they accept their fate with resignation. “After all, I WAS breaking the law!” Sadly, it is that attitude of subservience that makes government so profitable, because, as I might have mentioned before, government is all about money. As long as people accept the opinions of officious strangers as somehow superior to their own, the flood of money from the people to the Rulers will continue.
It’s the “law,” and don’t you dare ignore it! March along with the other lemmings, and jump off the cliff when it’s your turn. Alternatively, give the Rulers, whose opinions you have disregarded, a large sum of money. Their good graces are always available at a price.