Once Again, the U.S. Courts Rule That Progressivist Fiction Is Truth
William L. Anderson
by William L. Anderson: My
Belated List of Things for Which I Am Thankful
When a three-judge
panel of the U.S. Fourth Circuit Court of Appeals this week dismissed
lawsuits brought by former Duke Lacrosse players against the City
of Durham, it repeated the fiction that governmental institutions
in this country are so necessary to preserving "our way of
life" that the individuals working in those institutions should
not be held accountable for their conduct no matter how outrageous
or illegal it might be. The institutional cover, the justices ruled,
is enough to "prove" good faith in the power of the state
to act in a pure and righteous manner, even if those who were
wronged can demonstrate that government agents were lying.
stems from the false indictment of three former lacrosse players
for allegedly raping Crystal Mangum, a Durham prostitute and stripper
(who currently is charged with murdering a former boyfriend), at
a party in March, 2006. I have written numerous articles on this
case, which became famous (or infamous) on a number of fronts and
ultimately was dismissed by North Carolina Attorney General Roy
Cooper in April, 2007. K.C. Johnson, the college professor whose
blog, Durham-in-Wonderland, has well-documented everything in that
commentary on the latest ruling from the justices, and it is
however, do leave intact that lawsuits filed against former Durham
police officers Mark Gottlieb and Ben Himan, both of whom played
up-front roles in the "investigation" and also testified
to the grand juries that returned criminal indictments against three
of the players, David Evans, Collin Finnerty, and Reade Seligmann.
Whether or not the courts decide to protect those two scofflaws
in future proceedings is another matter.)
In the past
several years, I have written a number of articles and papers on
the Progressive Era and its continuing legacies, and I continue
with that theme in this piece. For all of the talk that our country
is a Constitutional Republic, it actually has been a Progressive
Democracy for more than a century, as the original U.S. Constitution
today is nothing more than parchment under glass, and any contemporary
legal interpretation of the Constitution is conducted through the
Progressivist viewpoint. (Keep in mind that Progressivists like
Woodrow Wilson and Herbert Croly openly despised the Constitution
and believed that at best it should be ignored and at worst, publicly
Paradigm of Progressivism
If we can reduce
the Progressivist ethos to one line, it would be this: Experts should
rule us. In legal terms, that means that judges defer to the "experts,"
who actually are nothing more than government employees. For example,
when the Civil Rights Act of 1964 was passed, it contained language
that specifically forbade racial quotas as a means to redress racial
less than a decade, the U.S. bureaucracies were imposing those forbidden
quotas upon numerous institutions and businesses and the U.S. Supreme
Court ruled specifically that it must "defer" to the interpretation
of the law by federal bureaucracies. (Paul Craig Roberts and Lawrence
Stratton in The
New Color Line explain the SCOTUS rulings and how bureaucrats
now write law.) This hardly was unusual, as the process began during
the Progressive Era in which Congress would write laws, but bureaucracies
then would write the actual rules that would be the standard by
which the authorities would implement and enforce the laws. The
ominous process gained speed during the New Deal, as Congress ceded
much of its lawmaking power to President Franklin Roosevelt and
the executive branch, and the process continues to the present time.
Like all political
movements, Progressivism was backed by the secular ideology based
upon the viewpoint that formal education would produce "experts"
firmly grounded in science who would wisely and competently guide
American society in ways that would be superior to the "chaos"
created by free markets and constitutional rule of law. (Judge Andrew
Napolitano has written a book, Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional
Freedoms, in which he explains how Progressivism and the
institutions it spawned eviscerated historical American liberty.
David Kiriazis and I have an upcoming paper in The Independent
Review in which we show how Jim Crow policies and Progressivist
economic regulation were tied together.)
One of the
standing doctrines of Progressivism was that government agents,
if they were to do their jobs properly, needed to be shielded from
methods of accountability wielded by ordinary citizens. That meant
that individuals who might be harmed by wrongful actions of government
agents (acting "under the color of law") had limited recourse
in seeking redress for the harm brought to them.
judges have been hyper-vigilant in protecting the main players in
criminal courts – prosecutors and judges – from lawsuits filed for
wrongful conduct, ruling that these individuals have absolute
immunity when acting within the scope of their "official"
duties. (The only reason that former Durham County prosecutor Michael
Nifong has not been dropped from the lawsuit is that he also declared
himself to be the main investigator of the criminal case against
the lacrosse players, and usurped the role of the police.)
this practice point out that prosecutors and judges can be
disciplined by panels that supposedly oversee their conduct and
that they also can be brought before various state bars that can
strip these people of their law licenses if the conduct is egregious
enough. The North Carolina State Bar, for example, took away Nifong’s
license because of his actions in the lacrosse case. Furthermore,
supporters of this system argue, wayward prosecutors and judges
can be criminally charged for misconduct.
For all of
the claims that these ballyhooed "safeguards" are sufficient,
in reality they are a joke, a very sick joke. Nifong’s punishment
was mild when compared to the outright criminal behavior on his
part. Despite the huge number of cases in which prosecutorial misconduct
has led to fabricated charges and even wrongful convictions, not
one prosecutor in this country’s history has been convicted of a
crime related to such wrongful conduct. When I laid out evidence
of massive misconduct by two prosecutors in the 2010
Tonya Craft case in Northwest Georgia, the representative of
the Georgia State Bar curtly replied, "They were just doing
their jobs." When I asked her if subornation of perjury, withholding
exculpatory evidence, and lying to jurors during the trial was just
"doing their jobs," she hung up the phone.
judges and prosecutors are held accountable only to panels of other
government workers or, to be more specific, many of their cronies.
The Progressivist notion that formally-educated "experts"
would not be subject to the same base motives that mere mundanes
exhibit is laughable on its face, but that farce today masquerades
as a sacred legal doctrine.
the judges in the lacrosse case recently made their rulings, they
based them upon the doctrine of "sovereign
immunity" which protects governmental bodies and the individuals
that are employed by those bodies from lawsuits. The judges ruled
that the City of Durham, being a municipal body, has sovereign immunity
and should be protected as such.
judges went much further than simply to restate sovereign immunity,
as they also restated the Progressivist doctrine that the "experts"
employed by the city were acting in good faith because, after all,
they were experts. The Kafkaesque views of the judges are further
exposed by their statements that the original accusations from Mangum
– no matter how ridiculous and untrue they might have been – were
reason enough to pursue a criminal investigation, and, the judges
rules, the fact that Nifong secured criminal indictments – even
though police officers lied to grand jurors – was enough to establish
the "legitimacy" of the criminal charges against Evans,
Finnerty, and Seligmann.
This is important,
for the justices restated the Progressivist viewpoint that governmental
bodies are incapable of wrongful conduct whenever they follow –
even loosely – the established norms of "procedure." Thus,
it did not matter if the investigation was bogus, if statements
given by police officers were untrue, if police officers wrote and
filed fabricated reports, and that the "lineup" in which
Mangum identified her alleged attackers was rigged as long as the
veneer of "procedure" was followed, which then sanctified
the entire dishonest process.
the underlying themes of race and class that drove the lacrosse
case in the first place, the corruption of the "legal process"
that was evident has been lost. The fact that officials from Durham,
the Durham County DA’s office, and Duke University lied early and
often is obscured because of the race and class narratives. (Film
Burns recently repeated in various interviews his view that
those charged in the case were hardly "innocent," and
that they only were "mildly inconvenienced" by the whole
affair. I will have commentary on what Burns said in a later article.)
federal judges have chosen to protect outrageous conduct by government
officials is hardly surprising, given the record of the courts and
the political and legal doctrines that underlie their decisions.
Once again we are told that the most important thing is that police,
prosecutors, and judges need to be free to "do their jobs"
and that we must be willing to put up with "collateral damage"
so that the "system" can be free to protect us from the
What we are
not told – and what the pundits never seem to ask – is why we should
even confer legitimacy upon a system in which liars and wrongdoers
receive immunity from punishment for outright criminal behavior.
This is not the problem of a "second-best" set of circumstances
or even the admission that human beings are fallible creatures.
No, what we are seeing is tyranny in action in which those who rule
over the rest of us declare that they are so pure and so holy and
so necessary to our well-being that we cannot and will not hold
them accountable no matter how egregious their actions might be.
This is not the institution of justice; it is the institutionalization
of lying, the very antithesis of justice.
L. Anderson, Ph.D. [send him
mail], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute. He
also is a consultant with American Economic Services. Visit
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