What makes a criminal?

I've mentioned before that after my term of service in the Navy, I became a student of US History, particularly the events surrounding the adoption of the US Constitution. But there is another period of US History I find fascinating because of its parallels to modern times.

Prohibition.

On January 17^th, 1920, the 18^th Amendment went into effect, and the United States officially became a dry nation, where alcohol was outlawed. Prohibition and the ratification of the 18^th Amendment was not something that had simply crept up on us overnight – the temperance movement had been pushing for it for nearly 100 years in the United States, and various regional pushes well before that for centuries. They finally succeeded with the 18^th Amendment, and thus began what was supposed to be a new era in the US.

Except that history shows us it failed. And failed miserably. While initially it did reduce alcohol usage, after a short while, alcohol usage actually went up. Otherwise law abiding citizens began deliberately breaking laws. Criminal organizations rose, and violent crime along with them. The tax-free profit of illegal alcohol was too tempting, and being illegal, territory and business disputes had no legal recourse to resolve them, leading to them being resolved with “might makes right” policies. In other words, violence. And lots of it.

We see a lot of parallels in the drug war that began in earnest in 1971, particularly with marijuana. But I digress from the point I want to make. Both situations, as well as other, more recent legislative attempts, beg the question “What makes a criminal?”

Most people agree on certain crimes, like murder, violent assault, rape, theft, etc. They are part of the social contract, and violating them rips the very fabric of society apart, necessitating the branding of those who would violate them as criminals and undesirables. These are fairly clear cut, and there is rarely disagreement about them.

Other crimes aren't so clear cut, like those against laws that basically function as the lubricant for a civilized society. Laws like zoning ordinances, speed limits, etc. As a libertarian, I'd love for there to be no need for these type of laws, because as functioning adults, we should be able to police ourselves, and be able to work things out with our neighbors. Unfortunately, even in the most utopian ideal of societies, where everyone is respectful of everyone else's rights, there will always be a small amount of friction between individuals that society as a whole will need to step in and mediate. Since I recognize that humans are far from perfect, I also recognize that these types of laws will always be a necessary evil.

People that violate these types of laws can also be branded as criminals by society, even though a significant portion of society may not see them as such.

There is another class of crime that is particularly troubling. It's those crimes defined by government as crimes for no other reason than to protect the existence of that government. Wile this would include sedition or treason as defined by the Constitution, I'm primarily talking about the proliferation of laws, proposed legislation and executive policies we've seen since the 1930s. Things like REX84, The Violent Radicalization and Homegrown Terrorism Prevention Act, NSPD51, USC 2384, and The Smith Act. Things that often go outside the boundaries of our constitution and attempt to side step the bill of rights.

But even more troubling than those, and more relevant to the point I would like to make are the laws that take formerly legal activities or possessions and make them illegal “for our safety.” Laws like Prohibition.

When something formerly legal is suddenly made illegal to keep us safe, who are the real criminals? When otherwise law abiding citizens are turned into criminals overnight simply because a president or governor or mayor signed a new law, does that truly make that citizen a criminal?

The law says yes, it does.

But is it really that simple. Isn't that kind of a bitter pill to swallow when you or someone you love is suddenly a criminal merely because a signature has been put to a piece of paper?

Now, in some cases, one could argue “well X causes Y harm, and it makes sense for it to be illegal.”

Maybe. Maybe not.

Consider, for a moment, how the first moment of Prohibition must have been like. If a man came home from work, and enjoyed a single beer with dinner every night, or a woman enjoyed the occasional glass of wine before bed, they instantly became criminals if there was any beer or wine left in their household the very moment that law went into effect. Even if they were otherwise 100% law abiding citizens.

Really, truly think about that for a moment. One minute, they're a law abiding citizen, the next minute, through no action of their own, they are criminals.

Yes, yes, I know – they could have made sure to drink or get rid of the alcohol before it became illegal, but that's not the point of this thought exercise. The point is, is it right for nothing more than the signature on some legislation to turn a law abiding citizen into a criminal for something they acquired while it was legal?

I can hear some of you now “Yes, but...” Yes, but nothing. Really think about it. You can use all sorts of examples to justify it all you want, but I'm trying to get you to think outside the box here. Don't think about it in the case of the controversial subjects like guns or drugs or alcohol. For those of you who are married, while you consider my next part, also think about that subtle shift in your opinion once your vows were finalized. Look around your room, or your house and pick a favorite object of yours or a family member. 

How would you feel if, for whatever reason, that object suddenly became illegal?

Would you remain a law abiding citizen and turn it in or destroy it? Or would you keep it, and become a criminal? What lengths might you go to retain it?

What if it's not your object, but that of a spouse or other loved one? Would you insist they get rid of it? Would you aid them in being a criminal? Would you turn them in to remain a law abiding citizen?

Not such a simple problem, is it?

Then consider, if you choose to remain a criminal, to defy the law, what other laws might you be willing to disobey? I mean, you're already a criminal, right?  

In the end, each of us can only answer this type of question for ourselves. Only we really know what will make us a criminal. But something I do know, from my insignificant studies of people and history is that more often than not, most people will choose to become a criminal if they do not agree with the law that suddenly made them one. And that once they are labeled a criminal, they are much more likely to be willing to disobey other laws.

Who's fault is that? 

What the Constitution means to me.

Thirty years ago, I was a 17 year old high school senior trying to sort out the direction my life would take, when I made a fateful decision. After much research, I had decided to enlist in the United States Navy and get trained as an Electronics Technician. Armed with my decision, but still a couple of months from my 18^th birthday, I went to my parents and asked them to sign the waiver allowing me to join as a minor.

To my dismay, my parents said "No" and refused to sign. While I was upset with them at the time, it didn't take me too long to be glad they said "No". It gave me the opportunity to see that joining the Navy was more than an educational decision, but a commitment to the value of personal responsibility my parents struggled to instill into me my entire childhood. By the time I turned eighteen, I was more certain than ever that I wanted to enlist, and so on my 18th birthday, I spent the day at the Military Entrance Processing (MEPS) Center in Denver going through all the tests and signing a Delayed Entry Program agreement to enlist after I graduated high school. My future was set.

Eleven and a half months later, I stood back at that same MEPS Center, and took my oath of enlistment. I was a US Sailor. Many times throughout my six and a half year enlistment, I regretted my decision to join, for military life and I didn’t always agree, but for the most part, I was proud of my time as a member of the US Navy. To this day, I am thankful to my parents that they forced me to make this decision on my own - it remains one of the best decisions I've ever made, and everything about it still defines much of who I am today.

While I took my oath of enlistment seriously during my time in the Navy, sadly, I didn't really come to realize how important and serious it was until after my enlistment was over. It was during the Bush Sr administration, while attending college part time and taking my required business law and political science classes for my business degree that I became an informal student of history. And as a student of history, I began to realize the depth of meaning behind that oath of enlistment. I realized that though my obligated term of service to the United States Navy was well and truly over already, that much of the oath I took back then should and would carry through for the rest of my life.

"I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same..."

When I took that oath I knew the text of the Constitution and its amendments. I knew the basic history of the Declaration of Independence and the Revolutionary War that all led to the Constitution. I knew what I was supporting and defending, and I honored it.

But until I began studying the history of the Constitution and the men who wrote it, I don’t think I truly understood the depth of the oath I'd given. And the more I read, the more fascinated I became. I read the writings of several of our founding fathers like George Washington, Thomas Jefferson, Ben Franklin, James Madison, etc, in the form of the Federalist Papers and the papers of the anti-Federalists. I read the early Supreme Court rulings that truly began defining our government. I read the various State Constitutions of the original 13 states, and of several states that came after. The changes the Civil War brought to our nation. The hundreds of years worth of legal and common law precedents from England and Europe that our nation’s laws are balanced upon. Twenty years later, and I’m still finding interesting things to read and re-read.

What I learned changed my political views. It made me more aware of that oath I took. Made me aware of the significance of the US Constitution, and the Bill of Rights. Made me more aware of the probable intentions and mindsets of the framers of the Constitution. I went from being a republican on paper to being what I would call a Constitutionalist, but what mostly aligns with the libertarian viewpoint in modern terminology.

For the last eleven years, since that fateful September day in 2001, I have become more and more painfully aware that many of my fellow Americans don't understand the Constitution. Oh, sure, they know the text. But they conveniently interpret things to their own meaning, paying no attention to the history behind it. Paying no attention to the little erosions that don’t affect them personally, but that they should be alarmed by. Worse still are my fellow Americans who do understand and should pay attention, but don't care. Particularly those who are our elected representatives.

What's really troubling is that these elected Federal Officials are in the less than 20% of Americans who have taken an oath to uphold the Constitution of the United States.

The Congressional Oath of office is very similar to the oath I took:

"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter..."

The Presidential Oath of Office also confirms the duty to uphold the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

So does that of the Supreme Court:

"I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States.

Every Federal Official has to take an oath, and every one of those oath's refer to their duties to the Constitution of the United States. And yet, the bulk of our career politicians don't seem to care.

Just as troubling is when you see the attitude that our Military, Representatives and Senators are there to serve the people. They are not. There is nothing in any of our oath's to serve the American people. Our oath is to the Constitution. The Constitution is what protects the unalienable rights of Life, Liberty and the Pursuit of Happiness of the American people. It is the Constitution that defines what rights are unalienable, that limits what government can and can't do for or to us in regards to those rights.

Congress is not there to serve us, to cater to our whims and needs. They are there to see that the government runs according to our Constitution, and to represent - represent, not serve - our interests when it comes to matters of government, like taxation. There may seem to be a subtle difference between the verbs represent and serve, but it is a big difference.

Represent (V) - Be entitled or appointed to act or speak for someone

Serve (V) - Perform duties or services for another person

Let me reiterate that, so you can absorb its importance. The oaths that our elected Congressmen take are not about what you, your neighbor, the American public or some corporation want, but are to support and defend the Constitution of the United States.

The Constitution. Not the people. Not lobbying groups, not corporations.

Yes, it’s that important. And yet it’s often being disregarded by the very elected officials who swear to uphold it. In the name of safety.

We are at a time in this country where people are clamoring for safety. Many appear to be willing to give up the very freedoms the Constitution attempts to guarantee them for that safety. And this is very disturbing. Inscribed on a plaque in the stairwell of the pedestal of the Statue of Liberty is something Ben Franklin once said:

“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”

It was true when Franklin said it in 1755. It was true when Lady Liberty took her place on Bledsoe Island in 1886 and it is true now.

With Freedom and Liberty come Risk and Responsibility. There are a great many quotes from our founding fathers that represent this, but my personal favorite is from a much more contemporary man – Robert Heinlein.

“You can have Peace. Or you can have Freedom. Don’t ever count on having both at once.”

You can have both at once, but it is a fragile balance. Sometimes the peace will have to be broken to maintain freedom. And all too often trying to guarantee peace leads to loss of freedom. And usually without accomplishing a long lasting peace.

And to voluntarily give up your freedoms only means that someone, somewhere down the line will probably use what you gave up voluntarily to take from you something you don’t want to give up. Is that something you really want? A risk you're willing to take?

You may think it is worth it, but as most parents know, sometimes what you think you want or a risk you're willing to take isn’t really in your best interests. What parent among us hasn’t denied our child something they've declared they “will just die without” knowing full well that something else is more important to their well being, no matter how much they don’t like it? And what child hasn’t at some point in their life thought they knew better than their parents, and done something anyway, only to have things go wrong – sometimes horribly wrong?

Our Constitution is like that for us as a people, a culture and a society. Our politicians and two major political parties appear to have forgotten that.

I understand quite well that there have been numerous tragedies and horrible things happen out there in recent years. They are regrettable, and often horrific and terrible to contemplate. But as horrible as they may be, making decisions and enacting laws to protect us while we are emotionally fragile from those events is exactly the wrong response. Especially if those laws are not in the spirit of, or even in direct contradiction to our Constitution.

The framers of our Constitution deliberately made it hard to change. They wanted careful consideration of every change we make to it. They wanted it to protect us against the tyranny of our own government. And history has shown time and time again that they were right to do so, because even after careful consideration, what’s supposed to protect us doesn’t always do so.

Take a look, if you will, at the 18^th Amendment, which was intended to deliver our society from the evils of Alcohol. It was well intentioned, and after decades of effort by the temperance movements, this “progressive amendment” was finally enacted in 1920. Shortly after the enactment of the 18^th Amendment and the Volstead Act, liquor consumption dropped, arrests for drunkenness fell and the price for illegal alcohol rose higher than the average worker could afford.

A success, right?

Not so fast. See that last part, where it’s noted that the price of illegal alcohol rose? Since there was still a demand for alcohol, even though it was illegal, it became attractive to many people, including criminals, as a way to make easy money. And the result was criminals evolving into sophisticated and often violent syndicates to control the illicit trade of alcohol. The birth of the modern Mob. Along with bootlegging, other criminal enterprises took root, too – prostitution and gambling were often found hand and hand with alcohol in speakeasies and other venues where alcohol could be found. Violent crimes rose, as criminals vied for control and profit. Alcohol consumption began to actually rise to higher than pre-Prohibition levels.

After thirteen years of Prohibition, and some of the most violent times in US history, America came to our senses, and the 21^st Amendment repealed, in its entirety, the 18^th Amendment. The first and only time in our history that we have repealed an Amendment in its entirety.

This is not just my opinion of what happened during Prohibition. The rise in violence and crime during the 1920s is well documented by a variety of sources both inside and outside of government. History shows us quite clearly that this well intentioned law designed to protect us from ourselves and the evils of an inanimate object had exactly the opposite effect.

Almost all of the emotional issues facing our country today have historical parallels we can look at. And as the philosopher George Santayana once said, and has been often repeated and paraphrased - “Those who cannot remember the past are condemned to repeat it.” And yet way too often in my adult lifetime, we as a nation do fail to consider the past when contemplating the future.

There is a good reason that the United States Constitution and the Bill of Rights stand as some of the most important documents the world has ever seen, alongside writings like the Bible, Hammurabi’s Code of Laws, the Koran and the Magna Carta. It has served us well as a nation, and no effort to override it should be taken lightly, and especially not during times of duress or emotion.

Our country currently faces crisis. Emotions are high, and the people demand action. That is fine, and there is nothing in our Constitution that says we cannot act. But what it does do is require us to not think lightly about the actions we do take. Every right the first ten amendments, or Bill of Rights guarantees us are rights that we must take seriously and not overrule lightly.

The oaths of service for US Military and Federal officials are clear. To defend the Constitution against all enemies, be they foreign OR DOMESTIC. Any citizen or federal official who knowingly proposes to overrule the Constitution and Bill of Rights without doing so through the Constitutional amendment process is, in a sense, declaring themselves a domestic enemy. And as a veteran, it is my obligation to stand up against that person, and defend our Constitution. It is the duty of every soldier, sailor, and Federal official to do so. It should be the obligation of every American citizen to do so, whether or not you’ve taken the oath.

I have never had to defend the Constitution with more than words. I hope I never to have to do so with any more than words. But I will never forget that it is because of the First Amendment I am not afraid to speak my words, and because of the Second Amendment that I feel my words have power.

You shouldn’t either.

(I originally wrote this essay around Christmas 2012.  It was the feedback I received from posting this essay on Facebook that inspired me to start this blog, and therefore it is only fitting that the first post is this essay.  For those of you who read it when I first posted it, yes, it has been slightly edited - consider that original the rough draft, and this the published version.)