It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [137]
Sadly, the federal government has engaged in a profligate spree of criminalization of harmless behavior. We currently live under the oppression of a government which passes 56.5 new criminal laws a year, or 565 per decade.2 The United States Government Printing Office, whose core task is to provide “publishing and dissemination services . . . to Congress, federal agencies, federal depository libraries, and the American public,” is itself unable to calculate the number of pages in the Code of Federal Regulations. Even the American Bar Association’s Task Force on the Federalization of Crime has stated that “so large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”3 Stated in financial terms, as of 2006, the federal government and all state governments spent a staggering $109 billion annually on feeding, clothing, and confining imprisoned adults, as well as nearly $98 billion on police services and $47 billion for prosecutions.4 Although America has approximately 5 percent of the global population, 25 percent of the world’s prisoners reside here!
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The net result of this irreverent legislation and regulation is a violation of the principles enumerated elsewhere in this book, and a contravention of the Constitution’s extremely limited authorization to criminalize conduct. Thus, only a small fraction of the federal government’s criminal code can be considered truly legitimate, and it is the government, and not the individuals it prosecutes, that is guilty of the greater unlawful conduct. It is high time that we utilize the criminal law for its one and only true purpose: To safeguard our liberties, not restrain them.
What Is Harm?
I never hurt nobody but myself and that’s nobody’s business but my own.
—BILLIE HOLIDAY
As mentioned above, in a society that respects natural rights, only conduct which can properly be described as harmful, and not merely offensive, can be criminalized. Harm can be defined as “an intentional nonconsensual physical violation of another person’s natural rights.” It should be clear at once that only actual injuries which fit this description can justifiably be punishable by the government. Should an individual who has never before suffered an epileptic attack be sentenced to life in prison when an unprovoked and unpredictable seizure causes him to swerve off the road and hit a pedestrian? Certainly not. By contrast, rape, murder, and theft are all actions which intentionally cause actual harm to natural rights and thus deserve to be punished as crimes.
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More specifically, we can think of harm as requiring that there be an actual victim. A prime example of a victimless crime is the private consumption of alcohol, or any drug for that matter. These substances surely affect one’s person, but in what way are they invading or assaulting another’s body, rights, or property? One might argue that they lead to dangerous behavior when one is in an altered state, but until a person whose judgment is impaired actually invades or assaults another’s body, rights, or property, he should not be punished, and the act of consumption itself should be free from regulation as an application of the right to do to one’s body as one chooses. The criminalization of a victimless activity itself is by no means a necessary restriction of liberty, as all restrictions of liberty must be.
And in any event, does not the action of watching an intense football rivalry increase