Malum Prohibitum: The Evil Legal Language of Progressivism
William L. Anderson
by William L. Anderson: Aaron
Swartz and the Feds: How Progressivism Becomes Tyranny
over the prosecutor-inducted suicide of Aaron Swartz continues,
and well it should. Glenn Greenwald’s
recent column barely contains the rage of a principled civil
libertarian who despite his deep Progressive-Left outlook still
can understand government-induced evil when its ugly face is revealed.
from Massachusetts to California are outraged at what they correctly
see as a relatively minor legal transgression by an honorable activist
turned into a "crime" for which punishment would be imposed
that would be greater than that experienced by convicted murderers
and rapists. Yet – and I despair of my own inability to make this
point so that Progressives can comprehend – what these people seem
incapable of understanding is that their own legal/political theology
is the problem.
Yes, a lot
of outrage properly is directed at U.S. Attorney for Massachusetts,
Carmen Ortiz, a Barack Obama-appointed political animal who apparently
had her eyes set upon the governorship of that state. Both she and
her assistant, Stephen Heymann, who also has a reputation for being
now targeted in petitions to
the White House to fire both of them, and because the petitions
have more than 25,000 signatures apiece, the Obama administration
now is legally-obligated to respond to them. (It will be interesting
to see if Obama and his equally-culpable U.S. Attorney General Eric
Holder, whose own hands are washed in blood of innocent people,
will throw Ortiz and Heymann overboard or if they will try to ride
out what could be a difficult political storm.)
Democratic Congresswoman Zoe
Lofgren has introduced "Aaron’s Law" in hopes "to
prevent a repeat of the abuses of power he experienced." While
this might sound dramatic, it truly is futile, just as former U.S.
Senator Jim Webb’s
attempt to deal with the ugly stain of U.S. incarceration policies
and especially those involving the eternal
Why, does one
ask, are all of these "reform" efforts exercises in futility?
Greenwald, after all, is an eloquent and impassioned voice for justice,
perhaps the best on the modern scene. Even conservatives and liberals,
Republicans and Democrats, are able to agree somewhat with one another
that things have gone too far, that too many people are incarcerated,
there are too many laws, and too many "crimes."
Yet, I doubt
that one Progressive, Right or Left, that one outraged lawyer in
Massachusetts, the Great Greenwald, or even any member of Aaron
Swartz’s grieving family can recognize the real problem: Malum
Prohibitum. Yes, Malum Prohibitum is the very
core, the very essence of Progressive law, and it is that legal
doctrine that has turned U.S. law into the horror story it has become,
but because most Americans have come to believe that Malum Prohibitum
is the very essence of justice itself, we are doomed well into the
future to live its awful results.
Let me give
an example that I believe will explain my position. Many of the
same people who are outraged that Ortiz and Heymann could drive
a brilliant young man to his death by converting what essentially
was a small violation based upon Malum Prohibitum into a
series of "crimes" punishable by up to half a century
in prison no doubt fully support that Gov. Andrew Cuomo was able
to do in the State of New York this past week.
To the lavish
praise of the ultra-Progressive New
York Times, Cuomo got the state legislature to pass sweeping
gun laws that turned legal possessions into illegal contraband.
In the future – with the full support of Progressives everywhere
– SWAT teams will violently invade the homes of many gun owners
to confiscate weapons that pose no danger to anyone and whose law-abiding
owners either will be killed or arrested and become treated as though
they were dangerous murderers. We know these things will happen,
and I would even surmise that Greenwald and nearly every mourner
at Aaron Swartz’s funeral would agree that New York authorities
would be legally and morally correct.
When a man
who has owned a gun – say a World War II vintage M-1 Garand – for
many years but fails to register it with the authorities in New
York, even if that gun is locked in a safe and is unloaded and has
not been fired in a generation, the police can and will swoop into
his house armed to the teeth. If the man or any member of his family
is gunned down in the SWAT melee, at very best Progressives will
see it as unfortunate "collateral damage" in the enforcement
of a "good law." Yet, that man and his family will have
posed no greater threat to society than did Aaron Swartz and an
army of his "hacker" friends, but the response of the
Progressive "community" will be poles apart.
I say this
not to condemn Greenwald – certainly one of the greatest living
champions of human rights – or anyone associated with Aaron Swartz,
nor do I accuse them of being hypocrites. What we have to understand
is that the very essence of Progressivism is the belief that the
State and its agents must decide what is right and what is wrong,
and that Malum Prohibitum carry the same moral and legal
weight as the ancient legal doctrine of Malum in Se. All
Progressives – Right or Left – believe these things and cannot imagine
a world without such doctrines.
The idea of
Malum in Se
is that some things are unlawful in and of themselves, and that
everyone recognizes the wrongness in the acts. Murders, theft, assault,
robbery, rape, lying in a legal proceeding, and other such actions
have been illegal throughout history in almost every culture. That
people have managed to avoid capture and punishment or that people
given State privilege are able to do these things and not be sanctioned
does not make them "legal" in the minds of most people,
but serves as a cause of outrage.
Malum Prohibitum has replaced Malum in Se as the guiding
legal force in American criminal law. The vast majority of the two-million-plus
people in American prisons, both state and federal, and the many
millions more in the criminal justice system, are there because
they allegedly violated "laws" based upon Malum Prohibitum,
and we have to understand that the laws and punishments that flow
from that doctrine are severe and arbitrary and have turned this
country’s "justice" system into a maw of injustice.
at least one
"mainstream" U.S. law professor has said that the draconian
punishments that Ortiz and Heymann were seeking involved a "fair
reading of the law," people naturally are outraged that an
original act that in itself was more symbolic that really did not
impose harm on others could be legally interpreted as the legal
(and moral) equivalent of terrorism with some of the harshest punishments
this side of execution being dangled before Swartz. I will go even
further: This entire legal episode was based totally upon Malum
Prohibitum and that Swartz did not engage in real harm, but
simply broke a set of rules that arbitrarily were imposed.
The legal essence
of the True American Revolution of Progressivism was the imposition
of rules that essentially criminalized actions that before the Progressive
Era were legal. Certainly the "crown jewel" of the Progressive
Movement of the early 20th Century was alcohol prohibition,
but despite the utter failure of Prohibition, American politicians
– with full support from the voters who supposedly are the "essence"
of democracy – have expanded the doctrines of Prohibition not only
to include drugs, but firearms, speech, and some forms of pornography.
in the USA, both state and federal, has seen explosive growth in
recent decades and almost all of it is based upon doctrines of Malum
Prohibitum. Government authorities determine what is "bad,"
and then they outlaw it with the idea that a submissive populace
eagerly will obey the next set of rules politicians and bureaucrats
send down the pike. As the Progressive mainstream media fuels the
next "crisis," government agents swoop in and "solve"
the problem by imposing a new set of rules that the media and their
academic allies then declare to be Holy Writ.
has gone on almost unabated for more than a century and most Americans
could not imagine their lives without being surrounded by arbitrary
rules imposed by their supposed "democracy." For that
matter, I would say that the near-whole of federal criminal law
is based upon Malum Prohibitum, and while state prisons hold
many more inmates than do federal prisons, the Drug War that has
fueled most of the increase of prisoners primarily has been a federal
initiative, and even when states revolt, as many have done with
regards to use of marijuana, federal authorities still demand prosecution
of people who use the drug, even those who have it prescribed by
may be outraged at how federal authorities piled onto Aaron Swartz
are perfectly happy with how federal and state governments tell
them what they can and cannot eat, what they can and cannot wear,
the kind of milk they may drink, how large their soft drink containers
might be, whether or not they can own firearms for their own protection,
and even what they can believe about the origins of the universe.
They are perfectly content that police officers can raid their homes
at will, shoot their family pets, pull them over on highways for
arbitrary infractions of the rules, and physically assault them
and even kill them without having to worry about being punished
no matter how outrageous the police conduct. (I cannot count how
many times I have been told, "If you are not doing anything
wrong, you have nothing to worry about." Oh, to wish that really
As I wrote
before, the entire federal "criminal" case against Aaron
Swartz was constructed upon the doctrines of Malum Prohibitum.
Every second that he would have had to spend in prison came about
from penalties prescribed by Congress and the government bureaucracies
and every second of those penalties was an arbitrary number. Every
"crime" he allegedly committed came from rules prohibiting
actions that not long ago were legal.
the core of the "criminal" case was fashioned from "wire
fraud" and "computer fraud" statutes that made the
action "illegal" because he used the Internet and a laptop
computer. If this is not arbitrary, then the word does not exist.
The original act itself – downloading papers from the JSTOR site
– was not clearly illegal, yet Ortiz, Heymann, and their staffs
were able to create a mountain of criminal charges that essentially
would have resulted in a life sentence for this young man, and ultimately
drove him to take his own life.
legal and moral episode was not made possible by "overzealousness"
and I would not dignify the word "zealous" to describe
either Ortiz or Heymann. The problem was not that two members of
the law enforcement community had such "zeal" for right
and wrong that they got carried away and pushed the case beyond
some legal or even moral boundaries.
was that two politically-ambitious people were able to use the legal
doctrines of Malum Prohibitum to pursue an agenda that would
have forced taxpayers to fund what essentially was free political
publicity for both of them, publicity that they believed would have
resulted in personal gains for themselves. Rudy Giuliani did this
successfully by engaging in reckless law-breaking in his pursuit
of Michael Milken. James Comey did the same when he went after Martha
Stewart, and Joel Klein benefitted handsomely from his legal actions
Ortiz and Heymann
were following the same prescription for "success" laid
down by ambitious and immoral people like Giuliani, Comey, Klein,
and others. They had no reason to believe that destroying the life
of Aaron Swartz would result in nothing but personal rewards that
would make them wealthy and powerful. After all, other federal agents
had successfully trod the same path and it worked for them.
a belt around his neck and hanging until his life ebbed away, Aaron
Swartz believed he only was ending his own tortured life. He had
no idea that his action would (one would hope) destroy the legal
and political careers of two evil and ambitious people who should
be pursued into oblivion and who deserve a much worse fate than
what will befall a publicly-disgraced man like Lance Armstrong.
there is a much larger story here that needs to be told, and not
enough people are going to recognize what that story is, much less
tell it to the world. Aaron Swartz was hounded to his death ultimately
by the horrid and evil legal doctrines of Malum Prohibitum,
arbitrary doctrines that have become the very basis for the laws
that rule our lives. These doctrines are what provide support for
Progressivism, and until Americans recognize that fact and until
Americans are willing to do away with the web of rules and more
rules that oppress them, they will be forced to live the nightmare
time and again.
This is not
simply a problem caused by those Progressives on the Left, as utterly
hypocritical as they might be. The law-and-order Progressives of
the Right are just as bad (and maybe worse) because they are True
Believers that Malum Prohibitum is the essence of the Good
Society and that rules are there for a good reason. Perhaps it is
that mentality that led the evangelical and politically-conservative
World Magazine to
lavish praise upon a nihilistic and immoral movie like Zero Dark
Thirty while mentioning the death of Aaron
Swartz only in passing, with the passage not even beginning
to address the vast and arbitrary powers of the prosecutors and
making it sound as though only a few activists believed the prosecutors
The Aaron Swartz
case was not a legal outlier any more than Michael Nifong was a
"rogue" prosecutor. Aaron Swartz faced what thousands
upon thousands of Americans face every day from a system of laws
that empowers the State and crushes liberty and replaces the light
of a free society with the darkness of tyranny. Most of the victims
of American "justice" choose to experience the horror
and remain alive, even though in reality, unbridled State power
has sucked the life out of them just as it drained the life out
of Aaron Swartz.
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
© 2013 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.
Best of William Anderson