A front page article in today’s Wall Street Journal caused economist David Henderson to ask a disturbing question.

Is the United States a Police State?

Such a question must be especially disturbing for an economist to feel compelled to ask. Here’s what Henderson says:

I’m organizing a session on this at the Association for Private Enterprise Education (APEE) meetings in Las Vegas in April and I’ve asked people who I expect are on each side of the issue to present. So far, no takers.

A police state, as I understand it, is not necessarily the same thing as a totalitarian state. A totalitarian state is necessarily a police state, but not vice versa. I think of a police state as one in which the government can find a charge to put you in prison even though you did nothing wrong. That’s part of my definition. If I need to be one of the people who presents in Vegas, I’ll come up with a tighter one.

And in case you reject the idea because Lew Rockwell said it, take a look at a front page story in today’s Wall Street Journal titled, “As Federal Crime List Grows, Threshold of Guilt Declines.” It’s by Gary Fields and John R. Emshwiller.

The topic is not new to this blog. There are thousands of federal felonies now (too many for the experts who study these things to count), and more are added every day by administrative fiat. That’s because Congress passes gigantic pieces of unread and unreadable legislation delegating its law-making power to administrative agencies which can then add new felonies willy-nilly. Just as the DEA can add a new drug (which means a new felony) to the controlled substances list, the EPA can add a new crime against the environment. Moreover, as we saw in the raids on the Gibson guitar company, based on federal laws criminalizing certain wood, new felonies may also be created by the foreign laws. (Gibson’s problem was not with the wood itself, which was legal, but in not having Indian woodworkers tool it, according to some American bureaucrat’s interpretation of Indian laws. And, of course, being a Republican donor, but never mind that!)

This whole thing reminded me of a recent incident alongside a lake where I was walking with some friends. There were packs of mangy-looking Canada geese waddling around pooping everywhere, and one of my friends picked up a feather and wanted to stick it in his hatband, whereupon I pointed out that doing so might be a federal crime! They both laughed and said I was being ridiculous, for surely such an innocent thing could not be a crime. I told them it was the law, and sure enough, even though the feathers are simply trash on the ground, according to the Migratory Bird Act, picking them up is a crime — regardless of intent:

It is a federal crime to violate the Migratory Bird Act, whether intentionally or unintentionally. Types of violations may include:

  • Deliberately hunting protected birds
  • Poisoning birds with improperly used pesticides
  • Poaching birds for sale as pets
  • Destroying nests or disturbing nesting birds
  • Raising baby wild birds as pets
  • Raising “abandoned” baby wild birds with the intent to release them
  • Collecting wild bird feathers, nests or eggs

In other words, they don’t care whether you knew it was a crime. Just like one of the scenarios described in today’s WSJ piece:

…what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin’s home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can’t. That included the 10 sea otters he had recently sold for $50 apiece.

Mr. Martin, 50 years old, readily admitted making the sale. “Then, they told me the buyer wasn’t a native,” he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn’t have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

“I was thinking, damn, my life’s over,” Mr. Martin says.

Federal magistrate Judge John Roberts gave him two years’ probation and a $1,000 fine. He told the trapper: “You’re responsible for the actions that you take.”

If a prosecutor wants to charge a citizen with a crime, all they have to do is scrutinize him closely. As the famous book title says, Three Felonies a Day: How the Feds Target the Innocent.

Except the problem is, we are all guilty.

Of living in a police state.

I’d say that the American revolution was fought over far, far less, but I don’t want to sound like one of those annoying cranks who won’t shut up…

So where’s the ACLU when we need them?