During my professional lifetime, liberals and
the left wing have focused on failures and misdeeds of the private sector, while
libertarians and conservatives have focused on the failures and misdeeds of
the public sector or government. It turns out that both sides are right.
The Enron case and
the other accounting scandals of this new century are testimony to misdeeds
driven by private sector greed, just as the unjustifiable war in Iraq is testimony
to the abusive behavior of government.
Justice demands that we be always on guard against a prosecutor's
case. However, the devastation wrought by fraud committed by a few
at the top of Enron seems real. Thousands of employees lost jobs and
pensions, and shareholders took a large hit.
We now know that fraud on the part of the Bush administration launched the
ill-fated Iraqi war. The war's financial and human cost dwarf the Enron catastrophe.
The out-of-pocket cost of the war to date is $337 billion, with steep future
costs for veterans' care and replacement of military equipment. Almost
3,000 U.S. troops have been killed, and Department of Veterans Affairs documents
show that 100,000 veterans of Iraq and Afghanistan have been granted disability
compensation. Estimates of Iraqi civilian "collateral damage" range
from 44,000 to 655,000
deaths. America's reputation has been shattered, and the prospects for terrorist
"blowback" are higher.
The most important difference between these two fraud cases, however, is in
accountability. The Enron executives have been brought to justice with prison
sentences, multi-million dollar fines, and, in one case, death
from a heart attack brought on, perhaps, by the stress of prosecution.
Even if the Bush administration and the rubber-stamp Congress are held accountable
in next month's election, the ringleaders of the war are unlikely to be brought
to justice. Polls indicate that the November election if votes are honestly
counted, an uncertainty with the electronic voting machines will hold
Bush and the Republicans accountable by ending one-party rule.
A number of commentators have noted that with the Democrats as
complicit in the war as the Republicans, a change in party control
over one or both houses of Congress is not exactly accountability.
But the problem is larger than that.
When government officials are held accountable, they are merely voted
out of office and not generally prosecuted. They do not suffer the
same severe punishments as their counterparts in the private sector.
Enron destroyed jobs, not people's lives, and the financial cost was
inconsequential compared to Iraq. The disparities in accountability
and punishment for misdeeds in government and private sectors are
So far in history, no private-sector interest has been able to achieve power
over a population comparable to the power wielded by Stalin or Hitler, and no
private-sector power has been able to set aside civil liberties as Bush has
done. The liberal-left notion that government is our protector from the private
sector is as naive as the libertarian-right view that all wrong resides in the
government. The common denominator of wrong is the fallibility of man.
The Founding Fathers gave us a government infused with sufficient
power to deliver justice to a people who believe in justice, but
structured to be incapable of enslaving the people. The government's
powers were separated, dispersed, and tied down with the Constitution
and Bill of Rights. Law was made a shield of the innocent rather
than a weapon in the hands of government.
This Blackstonian concept of law was gradually eroded by the Benthamite conception.
In a nutshell, Jeremy Bentham's argument is that once democracy had triumphed
over monarchy, people no longer had reason to fear government, which was now
the product of self-rule. Bentham argued that Blackstonian concepts constrained
government from using its power to do good, and that the restraints should be
removed in the interests of the greatest good for the greatest number.
Over time, Benthamite law gained in strength as various ideologies or interests
in power chafed at restraints on their agendas and as wars and the Great Depression,
and now "terrorism," created crises that accumulated power in government,
Higgs has demonstrated.
A government that has set aside habeas corpus and the rule against self-incrimination
is the last place one should look for protection. A Future
of Freedom Foundation conference will echo this theme next June. The underlying
theme of the conference, as the organizer, Jacob Hornberger, explained to me,
is that "blowback" to U.S. Middle East policy "resulted in the
9/11 terrorist attacks, which then led to the post-9/11 assaults on civil liberties."
I agree with Hornberger that the way to deal with terrorism is to
change the policies that provoke it. What the Bush administration has
done is to institutionalize elements of a police state as protections
against terrorists so that it doesn't have to change its policy in
the Middle East. There is no gain in being made more secure from
terrorism by being made less protected against the police power of
government. One threat simply replaces another, or is added to another.
However, if Hornberger believes that the assault on our civil liberties began
with 9/11, he hasn't a clue as to how serious the problem is. The year before
9/11, Lawrence M. Stratton and I published a book, which we titled How The
Law Was Lost and which the publisher titled The
Tyranny of Good Intentions. By law, we meant the Blackstonian concept
of law as a shield of the people, which is enshrined in the Bill of Rights.
We show in our book that our civil liberties have been so eroded that many are
"dead-letter" rights. The Bush administration's recent detainee and
torture legislation merely took some of these dead-letter rights off the books.
Even if the Supreme Court puts the rights back on the books, they have been
eroded by legal precedent and neglect.
Both Left and Right have fallen into Benthamite thinking in order to better
chase after the particular devils in their agendas. "Law and order conservatives,"
for example, are inclined to regard certain civil liberties as "coddling
criminals" and thoughtlessly take the side of police and prosecutors against
civil liberties. Both Left and Right are prepared to deny First Amendment rights
to the other side, and political correctness makes it impossible to debate many
issues or to acknowledge many problems. The Left has long campaigned against
the Second Amendment, an essential civil liberty.
When a problem is pointed out, people demand a program of action as a solution.
However, not every problem has a policy solution. When people no longer understand
that civil liberties are more important than political agendas, they have lost
sight of the belief system that protects them. Beliefs are more important than
institutions. As Michael
Polanyi noted many years ago, if people believed in Stalinism, democracy
would uphold Stalinism. If people believe in Bentham over Blackstone, there
will be no civil liberties regardless of political accountability.