Joseph S. Fulda
Contributing Editor Joseph S. Fulda is author of Eight Steps Towards Libertarianism.
First, a terminological note: by "illiberal," I mean what is now called "anti-libertarian," as the word "liberal" - ever since the New Deal - has morphed into the opposite of its original meaning. The rather inelegant word "libertarian" was expressly coined as a substitute for "liberal" when the latter could no longer be used in its original sense without a modifier, such as "classical." "Illiberal," however, is still often used in its original sense, one of the many quirks of usage.
Worse than simple inelegance, the word "libertarian" has all too often come to be identified with variants of anarchism that expressly violate the Divine order. One might look at Deuteronomy 16: 18, but the entire matter is explained in depth in a secular source which is religiously informed to an astonishing degree, that is Thomas Paine's Common Sense. Both Paine and Thoreau have been widely misunderstood to advocate no government at all, when all they really assert is both that that was indeed the original design and also that it will be the end state of the world when the kingdom will revert to the Almighty alone. Listen to Paine on the original design:
Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise.
. . . .
Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. freedom and security.
And, here is Thoreau on the end state:
I heartily accept the motto, - "That government is best which governs least;" and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which I also believe, - "That government is best which governs not at all;" and when men are prepared for it, that will be the kind of government which they will have.
When, then, will we be ready for it? Paine provides the answer above, "when . . . moral virtue [is sufficient] to govern the world." In the interim, however, we had better retain government, lest people swallow each other alive.
Second, another and more extended terminological note. The term "fruit," as used here, borrowed originally from Genesis, is borrowed further from the legal rules excluding evidence obtained from an illegal search or incidental to an illegal arrest. There are three well-known theories barring such evidence from consideration at trial, each with its own problems. The very first theory, endorsed unanimously by the United States Supreme Court back in 1886 in Boyd v. United States and reaffirmed unanimously in 1914 in Weeks v. United States is not well known and has since been overturned. That theory is that illegally obtained evidence not returned and then used against a defendant violates the privilege against self-incrimination. As the Court was fond of saying in those years, the Fourth and Fifth Amendments ran into each other.
In 1928, the U.S. Supreme Court heard a case, Olmstead v. United States, on wiretapping, and as the telephone was then still a relatively new technology, over the objections of four justices, most notably Brandeis and Holmes whose dissenting opinions were eventually to become the law, declined to extend the rule to such cases. Nevertheless, the Court soon reversed itself and adopted their theory as to what was wrong with such evidence: Government misbehavior trickles down into the hearts and minds of the citizenry and if ratified by the courts will have predictably bad effects on the character of the citizens. After all, if the government can violate the law with impunity, why can't the ordinary Joe? One problem with this theory is that the Constitution nowhere declares government a teacher, a concept that both the Founders and the Framers would certainly have rejected. That said, government does, indeed, teach by its conduct, even though there is no support for the idea in the text of the Constitution, or the history of its framing and ratification. Listen to George F. Will in his Statecraft As Soulcraft:
[A] function of government is the modification of habits. . . . Law, obviously, has the important task of guaranteeing the minimal outward conformity with duties necessary for a liberal order. Law counteracts the diversities of a people, requiring at least the minimal harmony required for social peace. But those diversities also necessitate law concerned with values as well as actions - with mind as well as body. They necessitate law as a ratifier and stigmatizer, in which role law is a tutor.
While it is clear that I would not apply this idea as broadly as Will does, I endorse its essence, as a fact if not as good Constitutional law. As we shall see, this fact matters.
Eventually, the exclusionary rules were applied to the states in 1961 in Mapp v. Ohio, using "the incorporation doctrine," in which the core liberties of the original Bill of Rights are applied to the states under the Fourteenth Amendment, and operating under the now-commonplace theory that the rules' purpose was deterring police misconduct, first made completely clear in 1974 in United States v. Calandra. In the lower court ruling in 1961, Judge Cardozo raised a different objection, one that applies as well to the "government as teacher" theory. Cardozo wrote that it seemed unreasonable that because the constable blunders, the criminal should go free. Now as "misconduct" obviously excludes clear "blunders," Cardozo's objection was soon after 1974 addressed by the "good-faith exception" in two separate cases, one in 1979 and one in 1984. This theory remains the law, but it, too, is nowhere in the Constitution. Deterring police misconduct or, more generally, ensuring that the executive branches of government "faithfully" execute the laws and no more is the job of the legislatures.
A third, and most ingenious, theory has been advanced in the pages of the Wake Forest Law Review in 1998 by Professor Jerry E. Norton, based on various state-court decisions before Mapp as well as asides in various and sundry Supreme Court decisions. It is that by excluding such evidence all the courts are doing is restoring the status quo ante, and ensuring "due process of law," which most assuredly is in the Constitution, both as applied to the federal government and as applied to the states. Professor Norton makes clear that the main object of this theory is both undoing the wrong done by the illegal behavior and the integrity of the judicial process. As Norton admits, however, this theory, too, would not exclude obvious blunders, unless significantly modified - although this does not disturb him.
It does, however, disturb me, although it is the theory most solidly grounded in the text of the Constitution and in the entire body of jurisprudence - state and federal - from 1886 to date. Here then is my modification to his theory. Police who commit intentional misconduct involving illegal searches and illegal arrests cannot be trusted, should they be disappointed by coming up empty-handed, not to commit the further misconduct of planting evidence, which is hardly unknown, although not particularly common either. (A different legal paper, in an edited legal collection, recently suggests that tort liability for illegal searches and seizures, an alternative often suggested to the exclusion of evidence, cannot work for this class of officer, although it does not suggest the general theory advanced here.) Using such evidence therefore renders the entire judicial process suspect, a different violation of "due process of law" and yet one that preserves the "good-faith exception." Like Norton's theory, it has both due process and the integrity of the judicial process at its core, but unlike Norton's theory it does not always undo the wrong done by the illegal search or seizure and therefore does not always restore the status quo ante.
At any rate, evidence that is excluded is commonly known as the "fruit of the poisonous tree," and it is in just that sense that we use fruit here.
Third, as the preceding Libertarian's Corner showed, corruption need not be recognized as such by law to be such. Laws do not create ethical realities; at their best, they recognize them; at their worst, they pervert them. After all, a law is but a statement, if often one ponderously long, and statements by people cannot and do not create realities.
Fourth, politics differs crucially from logic. In logic, while a true statement can only validly yield further truths, a false statement can validly yield anything whatsoever. Politics is quite different. A man who is virtuous in private life may become rather easily corrupted by his entrance into politics. This, more than "all the wrong people enter politics" explains the deeply corrosive effect of the political vocation on character and the critical need for term limits; it also explains the often huge "disconnect" between a politician's private life and public actions, to which much of history bears witness. Both halves of this last sentence will now be illustrated with two recent examples from New York City.
Few people can lay claim to the gentlemanliness and all-around decency of long-time City Clerk and then Mayor David Dinkins. Yet, these very special qualities rendered him unfit to govern the jungle that was then New York. Upon his election, he stumbled from crisis to crisis, because he did not have the fortitude to stare naked evil - a tidal wave of street crime, much of it extremely violent - in the eye and deal with it as required. Instead, it often seemed as if he was paralyzed and stunned by what occurred on his watch.
He was succeeded by the often-ruthless Rudolph Giuliani, whose principal claim to fame prior to his election was the prosecution of not guilty defendants in his post as U.S. Attorney. The United States Court of Appeals for the Second Circuit rarely overturns convictions handed down by the United States District Court for the Southern District of New York. Mr. Giuliani had the dubious distinction of being so manifestly unjust as to witness key convictions overturned on appeal. Yet it was just this ruthless quality that in his new role as Mayor made New York City governable again. By the close of his second term, crime had fallen to levels absolutely no one had thought possible.
Enter Mayor Michael Bloomberg, whose third term is the principal subject of this piece. During his first two terms, he largely (but not entirely) kept up the general program that Giuliani put into place, and crime even fell somewhat further. Then, something happened. In an act of unspeakable hubris, he violated the will of a large majority of voters expressed in two referenda that all city officials be limited to two terms. To get the City Council to pass a bill overturning the referenda, he in all but law bribed them by including them as well in a one-time exception to the law. Then, he bribed the voters by promising to empanel a City Charter revision commission which would put the matter before the voters a third time, after the election. The Council succumbed, the voters fell for it as well, only to reaffirm for the third time the city-wide two-term limit. Never mind that all this was within the law; it was nonetheless corruption and nonetheless accomplished by bribery.
I did not even consider voting for him the third time around, notwithstanding that he appeared to be the best candidate of those with a significant chance of winning. Because what he taught by his candidacy and his subsequent win is that the means justify the ends, even if the means involve de facto corruption and bribery. As this was no blunder, and threatened the integrity of the political process as well, I therefore excluded his entire candidacy from my radar screen in the hopes that if enough fellow citizens felt likewise, all three of the most promising justifications for excluding the "fruit of the poisonous tree" would hold. Government would not teach misconduct or that it pays; future misconduct would be deterred; the integrity of the political process and "due process" would be restored.
Yet, he did win, but the results of a "win" like this can hardly be expected to turn out as other than an outright failure. This is precisely because politics and ethics are so unlike logic. In some senses what he did was false - and if this were logic, anything at all could validly follow. As it is not, one can only expect further problems. The senses in which the word "false" might apply are two: He was false to his own character, as we will soon see, and what he did violated objective moral norms as well. The opposite is also true. David Dinkins, for example, won fair and square, and was true to his character as well, and yet rather than yielding only further "truths" in some sense, the results were a veritable disaster. What one can say of Rudolph Giuliani is a bit more complex. He is a man of obvious and great talents, and in one role he used them largely for the worse and in another largely for the better. This discussion helps account for the "disconnect" we referred to earlier.
Now, how exactly has Mayor Bloomberg failed? Let me count the ways. Quality-of-life offenses are up; street crime is up (although disguised by inaccurate statistics, which Giuliani would never have tolerated), and Mr. Bloomberg's third term has been otherwise marked by a series of fatuous and illiberal moves as his eyes wander from area to area doing damage wherever they turn. Yet, in his private life, by all accounts, he is a good man, yet another demonstration of the "disconnect" referred to above. His charitable and philanthropic giving is legendary; he serves for a mere one dollar as does his daughter; and the like. The only conclusion I can reach is that politics has had the corrosive effect on his character, also referred to above.
Four further examples of his outright failure in his third term as Mayor, culled from a much-longer list, suffice to make the point eminently clear: (1) All eateries are now graded from A to C by his infamous health department and its foolish commissioner. Many of the criteria used in this second-grade system of evaluation of entrepreneurs have little to do with health, but are disguised and therefore dishonest "revenue-enhancers." Pay the "fines" and correct the "problems" and the grades go up. (2) Fountain drinks sold in eateries will soon not be permitted to exceed twenty fluid ounces. Now, of course, drinking lots of sugar water is obviously unhealthful and a significant cause of obesity, which is itself a significant cause of premature mortality. But the ban applies to all drinks, but only at eateries, not in supermarkets, convenience stores, and the like. One huge chain has already prepared its answer to this foolishness. It has tripled the variety of drinks, and can be expected to lift all limits on refills when the cup-size decreases. (3) All trans-fats are banned in eateries as well. Now, the medical community is unanimously agreed that these are extremely bad for one. Yet entirely aside from the fact that this neither should be nor is the city's concern, it does not work, either! Virtually any oil when heated sufficiently (such as, of course, by deep-frying) becomes trans-fat. The Mayor is either unaware of this bit of biochemistry or simply cares about appearances. In all three cases, restaurateurs will either circumvent the regulations (and survive) or go broke? which doubtless does not really disturb anyone already a billionaire and who cares more about tourists and the businesses that cater to them than about New Yorkers and the businesses that cater to them. (4) The final example, however, dwarfs the rest. The Mayor got the state to foolishly cede authority over the public schools to an appointee reporting directly to him and answerable to him. The result of this cession has been a disaster. With some help from the New York State Board of Regents, although reading and math scores have in fact gone significantly down, the appearance is otherwise, as not merely have cut-off scores and the difficulty of the questions been allowed to fluctuate dramatically, but even the so-called "raw scores" are "adjusted." This is needed because "mainstreaming" efforts have put into virtually every classroom a significant contingent of special-education students, creating bifurcated classrooms that are impossible to teach - no one, anywhere, can teach simultaneously at two widely divergent levels; the best an unfortunate teacher in such a situation can do is teach towards a nonexistent middle, that is collect a paycheck but otherwise accomplish little.
Truly, one can witness the illiberal fruits of an office won corruptly. *
