Malum Prohibitum: The Evil Legal Language of Progressivism by William L. Anderson

Malum Prohibitum: The Evil Legal Language of Progressivism by William L. Anderson

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.



Unfortunately, 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.



Even though 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.



Criminal law 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.