WHEN LAW BECOMES THE PROBLEM, NOT THE SOLUTION
Attorney Jonathan Emord
January 18, 2010
As a general rule, where law advances, freedom retreats. A nation possessed of a never ending complex of laws proscribing conduct cannot be a free state or, if new to the journey, a free state for long. We are becoming a nation noteworthy for its abundance of regulation, a massive labyrinth of law so constricting that it suffocates nascent businesses before they can compete in the market and forces out of the market all but those who can afford the lawyers, accountants, and risk managers necessary to stay ahead of the inventive agency heads or members of Congress.
If grave stones dotted the landscape for every business that has succumbed due to over-regulation, we would see the following content engraved on hundreds of thousands of them: Here lies Business X that died from regulatory strangulation at a very young age.
When federal regulations prohibit or channel nearly every commercial activity, it requires an extensive legal education just to understand what can and cannot be done. Such regulation depends on prior restraint and vastly exceeds common knowledge. When seemingly innocuous behavior is criminalized, the innocent become criminals. Federal and state regulations now achieve that end.
An honest doctor in private practice who does not comprehend all of the nuances of Medicare law may well find himself accused by Medicare of criminal fraud, of overbilling, underbilling, or abusing a Medicare beneficiary. Watching in helpless horror as these regulations have come to pass and been enforced, many doctors in small practices have taken an early retirement, endeavoring to avoid becoming a victim of a government illness they cannot cure.
A local health food store owner who has been telling customers for the last two decades that cod liver oil has anti-thrombotic, anti-coagulant, and anti-arrhythmic properties that reduce heart attack risk can be prosecuted for selling “an unapproved new drug,” thrown in jail, and his business shut down. The truth is cod liver oil can reduce heart attack risk, but the truth is no defense.
A business man who wishes to sell a book about Indian remedies for disease must be ever mindful that explaining those remedies in advertising for the book can lead to a charge of deceptive advertising, requiring him or her to pay the government all of the proceeds received from sale of the book (so much for the FTC’s respect for freedom of speech and press).
A retired military hero who posted a recipe for a home brewed herbal tea on the web in gratitude for its beneficial effects on his illness became the victim of an FTC investigation that cost him his life’s savings (so much for a nation’s gratitude for a gentleman twice wounded in combat who was willing to lay down his life for his country) because he lacked scientific proof to a near certain degree that what he said was true.
A farmer whose farm accumulates water on part of his property during the year can be the victim of a fly over by federal agents only to discover that his land has been defined as a “wetlands” area and cannot be cultivated (so much for property rights protection).
A road traversed by settlers since the 1800s that a town considers its own can be forcibly closed against the town’s wishes and rendered unusable by the Bureau of Land Management as it works to define wilderness areas (so much for federalism).
A rancher land locked by federal park lands, as many are in the West and far West, may discover that fees charged for use of rights of way across federal lands have become prohibitive and that cattle, crossing onto federal property as they have for hundreds of years to go to watering holes, may be confiscated by the Bureau of Land Management (so much for the Constitution’s Takings Clause).
his first Inaugural Address in 1801, Thomas Jefferson explained the
basic principles which define “good government.” He said:
“Still one thing more, fellow citizens -- a wise and frugal Government
. . . shall restrain men from injuring one another, shall leave them
otherwise free to regulate their own pursuits of industry and improvement,
and shall not take from the mouth of labor the bread it has earned.
. . . [We are] [a]bout to enter, fellow-citizens, on the exercise of
duties which comprehend everything dear and valuable to you, [so] it
is proper [that] you should understand what I deem the essential principles
of our Government, and consequently those which ought to shape its Administration.”
We have long ago abandoned the fundamental principles that define good government. Our constitutional republic has been transformed into a bureaucratic oligarchy. We are now ruled by bureaucracies that no longer respect or follow constitutional restrictions against government control over freedom of choice that once were essential rules of law in this country (the constitutional doctrines of Enumerated Powers; Unconstitutional Conditions; Substantive Due Process; and the Necessary and Proper; Contracts; Takings; and Commerce Clauses).
Because our greatness as a nation has always been linked to our legal commitment to ensure the survival and success of individual freedom, we cannot expect to remain great if we allow those who rule us to sacrifice that freedom at every turn. We must remember what made us great and vote the rascals out. Our nation has no more extraordinary contribution to the evolution of man, no more precious national resource, than our Declaration of Independence and our Constitution.
The principles in those documents define who we are, a people who love liberty so much that they would stake their all on ensuring its survival and success. When we depart from those principles we become unremarkable, indistinguishable from all other peoples who labor under the yoke of government, victims of systems of governance that chose to make government sovereign rather than the people and to deny the rights of man rather than protect them.
© 2010 Jonathan W. Emord - All Rights Reserved