The FBI’s raid on Mar-a-Lago signals that we are all felons now.
As my fellow card-carrying member of the Columnist Party (and partner in our anti-cancel culture Thought Criminals blog and associated podcast) Rachel Alexander recently wrote at Townhall:
“There are so many laws on the books these days, many poorly written, that defense lawyer Harvey Silvergate wrote a book entitled, Three Felonies a Day: How the Feds Target the Innocent. He showed how the average person commits three felonies a day and doesn’t know it.”
Econlib’s David Henderson states that while Silvergate’s book is “excellent” he exaggerates. The average professional probably commits three felonies a month. That’s a quibble.
Henderson stipulates that three a month is “in itself horrendous.” True that.
The over-felonization of America derives from a long forgotten epic battle between two lawyers. I blame the late David Dudley Field II for laying the minefield that led to the FBI raid on Trump’s home.
Field came from a colorful family. His brother, U.S. Supreme Court Associate Justice Stephen Field, was described at Thirteen.org as “vengeful when crossed,” “of little-mindedness, meanlinesses, of braggadocio, pusillanimity, and contemptible vanity."
Dudley Field is the forgotten proponent of statutory, rather than organic (or “common”), law. Dudley Field, an early progressive, pushed legislation purportedly meant to simplify and clarify the customary causes of action at common law.
This let the legislation genie out of the bottle. It has made our lives worse.
Back in the day, Field’s efforts were thwarted in the State of New York, then the commanding heights of American law, by my distinguished predecessor James Coolidge Carter, co-founder and five times president of the New York Bar Association. Coolidge Carter also gave a series of erudite lectures at Harvard Law School compiled and published as Law: It’s origin, growth and function.
Coolidge Carter, in his opposition to Field, minced no words. Per Encyclopedia.com:
“Carter saw the move to adopt Field’s civil code in the 1880s as an attempt by ‘a few men,’ or more properly one man, to ‘discard the principles and methods’ of the law ‘and to substitute in its place a scheme of codification borrowed from the systems of despotic nations.’ More to the point, Carter worried that the Field Code would turn over to the legislature the power to govern relations between people, rather than leaving this kind of ‘private law’ under the jurisdiction of judges. Field was influenced by Jeremy Bentham and other legal reformers, who wanted to rationalize a chaotic world. Carter’s philosophy saw the law as more than a list of rules; the law was a system of justice derived from the unwritten folk wisdom of the people.”
Not incidentally, Coolidge Carter “was one of the prosecuting attorneys in the case against the Tweed Ring and helped recover for the city more than $6 million pilfered by corrupt politicians.” Field, by contrast, served as legal counsel to Boss Tweed.
The progressives’ Gramscian “cultural revolution” — of “dialectical materialism” — is designed to overthrow what Coolidge Carter called
“the spirit, the philosophy, the ideals, which held such firm control at the middle of the [19th] century. ... These ideals had been discredited, if not dismissed, and replaced by ‘an enormous pressure of material interests which hold in disdain any appeals to the universal principles of truth and right.’ These material interests had not been established by appealing to reason, truth, science, or history, but by asserting that this impending materialism was an irresistible force. Anyone who questioned these trends were seen as either ‘impracticable theorists, or traitors to the interests of humanity.’”
As I wrote at Newsmax in 2020, “conservatives' abdication of a commitment for justice is morally and politically indefensible. Justice is the foundation of the conservative worldview. I cringe when I hear a politician talking ‘law and order.’ The right formulation is ‘law and justice.’
"The greatest commentator on the common law, William Blackstone, wrote in his Commentaries:
'As, therefore, the Creator is a Being, not only of infinite power, and wisdom, but also of infinite goodness. … For He has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. This law of nature, being coeval with mankind and dictated by God Himself, is of course superior in obligation to any other.'"
Document retention a crime? The FBI’s incursion into Mar-a-Lago may be perfectly legal. That said, it fails the higher standard: justice.
Past time to begin the wholesale repeal of the promiscuous suite of unjust felony statutes unleashed by David Dudley Field II. Such travesties of justice debase America from “the land of the free” to the world’s most incarcerated nation.
Let freedom ring.
Ralph Benko, co-author of "The Capitalist Manifesto" and chairman and co-founder of "The Capitalist League," is the founder of The Prosperity Caucus and is an original Kemp-era member of the Supply-Side revolution that propelled the Dow from 814 to its current heights and world GDP from $11T to $94T. Read Ralph Benko's reports — More Here.
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