CARDOZO LAW REVIEW [Vol. 20:853 1999]
HOW THE LAW WAS LOST*
Paul Craig Roberts**
There is an old English saying, “That which thy fathers bequeathed
thee / Earn it anew if thou would’st possess it.” When it comes to accountable law, we have not been
earning it anew. Consequently, we no longer possess it. Neither do we any
longer possess law as a shield against the power of government. The delegation
doctrine has made “We the People” an empty vessel, and the erosion of
the Rights of Englishmen has made law a
weapon against the people.
The Rights of Englishmen are the prohibitions against crimes without
intent, retroactive law, and self-incrimination. These prohibitions are buttressed with restraints on
prosecutorial powers. Each of these legal protections took centuries to
achieve, and they have all taken a ferocious beating in twentieth-century
America. Today, even wealthy and prominent Americans are less secure in the law
than unemployed workers in the 1930s.
No crime without intent. To break the law requires a willful act.
The law must be known and intentionally violated. This means that the law has
to be clear on the statute books and not subject to the discretion of law
enforcement officers or regulators. Many prominent cases in recent years,
however, show that this safeguard against tyranny no longer exists. The Clark
Clifford and Robert Altman, Charles
Keating, Exxon Valdez, and Northern Virginia apple juice producer Ben
Lacy are examples.
In these cases, prosecutors relied on novel theories to legislate new
infractions by criminalizing civil offenses or, in the Clifford-Altman case, on
rank speculation that two separate legal transactions comprised a conspiracy.
In the Clifford-Altman case, all that had occurred was that Clifford and Altman
had financed purchases of First American Bankshares with a bank loan. The
transaction was handled by the blue-chip New York law firm Milbank, Tweed,
Hadley and McCloy. The stock’s subsequent sale netted Clifford $3 million
and Altman $1.5 million, and the prosecutors
interpreted this capital gain as a bribe for First American’s purchase in
competitive bidding of the Bank of Georgia.
In the case of Charles Keating, whose conviction has been
overturned, he was convicted of a crime that
did not exist until he was charged with it.
The prosecutors, in effect, pieced together a bill of attainder against Keating
by transforming the civil tort doctrine of respondeat superior, in which
a master is economically liable for the wrongdoings of his servant, into a
In the Exxon Valdez case, the United States Justice Department
criminalized an accident. The Justice Department charged Exxon with the
criminal intention of running the Valdez supertanker aground to pollute
the water with $150 million of oil and to kill migratory birds without a
Ben Lacy, a well respected seventy-three-year-old man running a family
business, made a few small mistakes in filling out state environmental
forms. Aggressive state environmental officers
theorized that the mistakes were intentional and part of a conspiracy to hide
the pollution of a stream behind the plant. The commonwealth attorney would not
touch the case, but the Justice Department had a quota for white-collar crimes
and needed the case. The factual evidence showed a pristine stream. This
evidence was suppressed by the Justice Department, which got the case tried on
surmise alone. When the judge told the assistant United States attorney that
the government had no case, the prosecutors got a short recess and suborned the
perjury of the scared co-defendant, a low level employee with little education.
His testimony was tailored to fit the conspiracy surmise, and Lacy was
convicted despite the purity of the stream.
Retroactive law. In Leviathan, Thomas Hobbes says that a precept of a just
commonwealth is the requirement that “[n]othing can be made a crime by a
law made after the fact.” Due to an early
and foolish United States Supreme Court decision, retroactive law is common on
the civil side. Superfund is the most
magnificent example for which people are held liable to the point of personal
financial ruin for actions that were legal when they occurred and which they
did not commit. The Supreme Court permits retroactive taxation. The last retroactive tax increase reached back two
years. Why not twenty years?
When the law breaks down on the civil side, it will eventually find its
way into the criminal side. Thus, Charles Keating was convicted of a
retroactive criminal offense invented by a prosecutor.
The Justice Department’s current antitrust investigation of
Microsoft Corporation is another example of retroactive law. According to
Business Week, Assistant Attorney General Joel Klein has a novel theory
that Microsoft has committed an antitrust infraction. As Mr. Klein’s theory is not on the statute
books, Microsoft had no way of knowing it was violating the law.
No self-incrimination. This rule was made to guard against
torture. In earlier times, guilty pleas were distrusted and inherently suspect,
because they created a presumption of coercion and torture, and violated the
maxim that “no man is bound to accuse himself.” Revering truth, English judges were loathe to accept
guilty pleas and urged prisoners to retract them. Jurists presumed that only
duress, torture, or unethical promises of leniency would cause a defendant to
forsake a trial.
With plea bargains, we have resurrected torture. According to the
Justice Department, ninety to ninety-five percent of state, local, and federal
criminal cases are settled by plea bargains.
Essentially the same data holds for civil cases. Why is this? The answer lies in the substantially
greater penalty associated with conviction in a trial compared to a negotiated
The purpose of a trial is to find the truth. The purpose of a plea is to
minimize punishment by confessing to an offense not committed. Once pleas
become the rule, prosecutors and police can draw up indictments against
individuals for which they have little or no evidence — witness the
Michael Milken case, any of Mayor Rudy Guiliani’s other financial cases,
or the Archer-Daniels-Midland price-fixing case or any number of drug cases and
Prosecutorial abuse. The principle of prosecutorial discretion
once protected citizens from being targeted by those empowered to
prosecute. Prosecutors have enormous
discretion in choosing their cases, but the choice should be constrained by the
amount of evidence and the level of criminality. If there is strong evidence
that nine adults committed murders, some evidence that a school-child stole a
loaf of bread, and speculation that a banker may have violated an arcane law,
the prosecutor is not supposed to first chase after the schoolchild or the
In addition, the prosecutor should not bring the full weight of the
government against private individuals in searching for reasons to prosecute
them. Armed with complete access to everything citizens do, creative
prosecutors could find novel grounds for indictments against almost anyone.
Prosecutors are supposed to deal with known crimes and not engage in fishing
expeditions to find grounds for indicting a person.
In 1940 United States Attorney General, and later Supreme Court Justice,
Robert Jackson said that the most dangerous power of a prosecutor is that:
he will pick people that he thinks he should get, rather than pick
cases that need to be prosecuted. With the law books filled with a great
assortment of crimes, a prosecutor stands a fair chance of finding at least a
technical violation of some act on the part of almost anyone. In such a case,
it is not a question of discovering the commission of a crime and then looking
for the man who has committed it, it is a question of picking the man and then
searching the law books, or putting investigators to work, to pin some offense
on him. It is in this realm in which the prosecutor picks some person whom he
dislikes or desires to embarrass, or selects some group of unpopular persons
and then looks for an offense, that the greatest danger of abuse of prosecuting
power lies. It is here that law enforcement becomes personal, and the real
crime becomes that of being unpopular with the predominant or governing group,
being attached to the wrong political views, or being personally obnoxious to,
or in the way of, the prosecutor himself.
The role of a prosecutor in a criminal case is not only to be a
plaintiff, but also to represent the defendant. As plaintiff, the government is
to follow and present the evidence against the charged party. As defendant, the
government has to insure that the party accused of committing a crime is
treated fairly by respecting his rights throughout the judicial process. Only
by exercising this dual responsibility can the government be an agent of
justice. Justice is not upheld if the law is stained in order to obtain a
conviction. Prosecutors who suborn perjury or withhold exculpatory evidence
desecrate the law.
In 1934 Supreme Court Justice George Sutherland summarized the dual role
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very definite
sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and vigor —
indeed, he should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.
Justice Jackson saw it the same way:
[Prosecutors who focus on building] up statistics of success ha[ve] a
perverted sense of practical values, as well as defects of character. . . .
[T]he citizen’s safety lies in the prosecutor who tempers zeal with human
kindness, who seeks truth and not victims, who serves the law and not factional
purposes, and who approaches his task with humility.
What percentage of prosecutors fit this model today? Ambition has
prevailed over justice.
Delegation. First, notice that the cases I have mentioned are
examples of de facto delegation, whereby judges and legislators permit
prosecutors to legislate bills of attainder with “novel theories.” To
prevent this corruption of the Rights of Englishmen, our Founding Fathers made
law accountable to “We the People.” This accountability was destroyed
by the delegation to administrative agencies brought in by the New Deal.
Theodore Lowi and David Schoenbrod have told this story well. What I can add is that it is much worse now.
Initially, delegation had to have a statutory basis. But as regulators grew
accustomed to writing the law, they grew comfortable with writing laws for
which no authority was delegated. To this has been added the delegation of the
power of the purse. In January 1998 the Federal Communications Commission
imposed a telephone tax used to finance educational expenditures. The momentum is to make things worse. The first act
of the first Republican Congress in forty years was to give the executive a
line item veto.
“We the People” have vanished. Our place has been taken by
wise men and anointed elites. We still have the pretense of congressional
oversight and the scholasticism of the Administrative Procedure Act. This facade lacks the honesty of the Enabling
Act, passed by the Reichstag, which delegated
legislative power to Hitler’s executive branch and reads as follows:
In addition to the procedure for the passage of legislation outlined
in the Constitution, the Reich Cabinet is also authorized to enact laws. . . .
The national laws enacted by the Reich Cabinet may deviate from the
Constitution . . . The national laws enacted by the Reich Cabinet shall be
prepared by the Chancellor and published in the official gazette. They come
into effect, unless otherwise specified, upon the day following their
Why does delegation matter? Cannot the wise elites do better than
“We the People” What if they could? The case for coercion is
extremely weak compared to the case for persuasion and majority consensus. The
case for the public-spirited bureaucracy uncorrupted by power and brimming with
wisdom relies on a Charlemagne. There is
nothing worse than having a Charlemagne system without a Charlemagne. The only
alternative to self-rule and accountable lawmaking is the rule of power. Lenin
best defined this type of rule: “It means neither more nor less than
unlimited power, resting directly on force, not limited by anything. Nothing
else but that.”
Tyranny is the inevitable consequence of rule from above, a point that
the Founding Fathers understood well when they separated the powers of a small
and restrained government. Liberty is a human achievement, the product of a
1000-year struggle. We have taken too lightly our obligation to “earn it
anew.” Consequently, we are ceasing to possess “that which thy
fathers bequeathed thee.” Our legislative political order has become an
administrative state in which “We the People” are increasingly
fearful of the government that we allegedly control. If Thomas Jefferson was
right, we cannot get self-rule back without a revolution.
* Luncheon Address of the symposium “The Phoenix
Rises Again: The Nondelegation Doctrine from Constitutional and Policy
Perspectives” held at the Benjamin N. Cardozo School of Law, Yeshiva
University, on March 19, 1998.
** Chairman, Institute for Political Economy,
Washington, D.C.; Senior Research Fellow, Hoover Institution, Stanford
University, Stanford, Cal.; Research Fellow, Independent Institute, Oakland,
 Lady Margaret Thatcher, Address at the
Heritage Foundation’s “Leadership for America” Gala (Dec. 10,
1997) (quoting an unknown poet).
See 1 WILLIAM BLACKSTONE,
COMMENTARIES *116-473; FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL
ORIGINS OF THE CONSTITUTION 9-55 (1985); JOHN MAXCY ZANE, THE STORY OF LAW
336-37 (2d ed., Liberty Fund, Inc. 1998) (1927). See generally NORMAN F.
CANTOR, IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL
See sources cited supra
See infra text accompanying note
See infra text accompanying
See infra text accompanying notes
See infra text accompanying note
See Morgenthau v. Clifford &
Altman, N.Y. L.J., Dec. 31, 1992, at 25 (N.Y. Sup. Ct. Dec. 30, 1992).
See Michael R. Beschloss,
Clifford Speaks, NEW YORKER, Sept. 6, 1993, at 44, 44-50; Richard O.
Cunningham, The Persecution of Robert Altman, WALL ST. J., Aug. 5, 1993,
at A13; Bruce Fein, BCCI Trial with Trifles Light as Air, WASH. TIMES,
Aug. 9, 1993, at E1; Kenneth N. Gilpin, Altman Verdict Is Stinging Loss for
Prosecutor, N.Y. TIMES, Aug. 16, 1993, at A1; Kenneth N. Gilpin,
Prosecution Hurt in Banking Trial: Judge Dismisses Bribe Charge in Fraud
Case on B.C.C.I., N.Y. TIMES, July 30, 1993, at A1.
See Keating v. Hood, 922 F.
Supp. 1482 (C.D. Cal. 1996), habeas corpus dismissed, 133 F.3d 1240 (9th
Cir. 1998); see also Court’s Ruling Favors Former S. & L.
Chief, N.Y. TIMES, June 10, 1998, at D2.
See DANIEL FISCHEL, PAYBACK: THE
CONSPIRACY TO DESTROY MICHAEL MILKEN AND HIS FINANCIAL REVOLUTION 214-45
(1995); Amy Stevens, A Legal Theory Will Get Tested in Keating Trial,
WALL ST. J., Aug. 1, 1991, at B1.
See Sharona Hoffman, Criminal
Sanctions in Accidental Oil Spill Cases — Punishment Without a Crime,
71 NEB. L. REV. 1033, 1033-48 (1992); L. Gordon Crovitz, Justice for the
Birds: Exxon Forgot to Get a Hunting License, WALL ST. J., Mar. 20, 1991,
at A23; Editorial, Fight On, Exxon, WALL ST. J., May 2, 1991, at
See Max Boot, Editorial, A
Rotten Fate, WALL ST. J., Nov. 3, 1995, at A14; Editorial, Bad
Apples, WALL ST. J., July 19, 1996, at A12.
 THOMAS HOBBES, LEVIATHAN (Michael
Oakeshott ed., Collier Books 1962) (1651).
Id. at 218; see also
DANIEL E. TROY, RETROACTIVE LEGISLATION (1998).
See Calder v. Bull, 3 U.S. (3
Dall.) 386 (1798). But see William Winslow Crosskey, The True Meaning
of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. CHI. L. REV.
539, 539-66 (1947).
See United States v. Carlton,
512 U.S. 26 (1994).
See Steve Hamm et al.,
Microsoft’s Future: A Band of Powerful Foes Is Determined to Slow the
Gates Juggernaut, But Microsoft’s Reach Already Extends Further Than You
May Think, BUS. WK., Jan. 19, 1998, at 58; see also Paul Craig
Roberts, Microsoft Is the Victim of a Legal Mugging, BUS. WK., Apr. 13,
1998, at 16; Paul Craig Roberts, Editorial, A Bill of Attainder for
Microsoft, INVESTOR’S BUS. DAILY, May 18, 1998, at A38.
See John H. Langbein, Torture
and Plea Bargaining, 46 U. CHI. L. REV. 3, 8 (1978); Leonard W. Levy,
Origins of the Fifth Amendment and Its Critics, 19 CARDOZO L. REV. 821,
See U.S. DEP’T OF JUSTICE,
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1994, at 461-63, 483-86 (Kathleen
Maguire & Ann L. Pastore eds., 1995).
Cf. LAWRENCE M. FRIEDMAN,
AMERICAN LAW: AN INTRODUCTION 78, 88-92 (rev. ed. 1998).
Cf. H. RICHARD UVILLER, VIRTUAL
JUSTICE: THE FLAWED PROSECUTION OF CRIME IN AMERICA 157-76 (1996).
 United States Att’y Gen. Robert H.
Jackson, Address at the Second Annual Conference of United States Attorneys 4-5
(Apr. 1, 1940) (transcript on file with the Library of Congress, Manuscript
 Berger v. United States, 295 U.S. 78,
See Jackson, supra note
23, at 3, 7.
See THEODORE J. LOWI, THE END
OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES (2d ed. 1979); DAVID
SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE
THROUGH DELEGATION (1993).
See Editorial, New Phone
Tax, WALL ST. J., Dec. 9, 1997, at A22; Editorial, Phone Tax,
Continued, WALL ST. J., Dec. 23, 1997, at A14; David Schoenbrod & Marci
Hamilton, Congress Passes the Buck — Your Tax Buck, WALL ST. J.,
June 12, 1998, at A10.
See The Contract with America:
Scorecard, WASH. POST, Mar. 27, 1995, at A17; Helen Dewar, Senate
Approves Line-Item Veto Bill, 69-29, WASH. POST, Mar. 24, 1995, at A1;
Jerry Gray, ‘Lazy Fools,’ Says Byrd; Champions of Cutting Spending
Gladly Hand the Ax to the President, N.Y. TIMES, Mar. 26, 1995, § 4
(Week in Review), at 2; House Passes Line-Item Veto; Measure Approved on
Reagan’s Birthday Faces Trouble in Senate, WASH. POST, Feb. 7, 1995,
at A1; Katharine Q. Seelye, G.O.P. Set to Lead Congress on Path Sharply to
Right, N.Y. TIMES, Jan. 3, 1995, at A1.
 5 U.S.C. §§ 551-559
See DOCUMENTS ON NAZISM,
1919-1945, at 195 (Jeremy Noakes & Geoffrey Pridham eds., 1975).
Cf. JOHN STUART MILL,
Representative Government, in UTILITARIANISM, LIBERTY, AND
REPRESENTATIVE GOVERNMENT 224-25 (J.M. Dent & Sons 1947) (1910).
 V.I. LENIN, A Contribution to the
History of the Question of the Dictatorship, in COLLECTED WORKS OF V.I.
LENIN 326 (4th Russian ed. 1980); see also PAUL CRAIG ROBERTS &
MATTHEW A. STEPHENSON, MARX’S THEORY OF EXCHANGE, ALIENATION AND CRISIS
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