Do you mainly fear government or feel protected by it? The American Founders wrote a Constitution and designed a system of government that sharply limited the powers of the state — because they understood that the greatest danger to the liberty of the people was the necessary evil of government.

The U.S has succeeded because it was based on the rule of law, with strong protections for property rights, and a judicial system based on due process. There has been a steady erosion of these basic principles and rights over the last 240 years, resulting in the undermining of economic freedom and the loss of much personal liberty.

The U.S. used to be near the top in rankings of countries regarding the “rule of law” and “property rights.” But now the World Justice Project places the U.S. at number 18 in its Rule of Law Index.

The rule of law means that all are equally subject to the law, and not to the whims of kings, dictators, and other rulers. Last week, the Property Rights Alliance released the 2017 International Property Rights Index. The U.S. is 14th out of the 127 countries that were measured. Property rights’ protections are highly correlated with economic prosperity and liberty, and levels of entrepreneurship.

One of the major abuses of property rights in the U.S. has been “asset forfeiture” whereby local, state or federal government officials seize property on the mere suspicion that the owner might have done something illegal — rather than on conviction. Many times, the seized property is used by and even destroyed by government officials — where subsequently the rightful owner is found innocent of all suspicions and charges.

The good news is that some states, like New Mexico and most recently Connecticut, have abolished “asset forfeiture” before conviction. It also should be abolished at the Federal level, where it has been abused by the IRS and other officials.

Real rule of law only exists if the laws are few enough in number, clearly written as to be readily understood by those subject to them, and equally enforced. There are now more than 5,000 federal crimes with more being added each year. How many have you violated? Probably many of them, because you were unaware of their existence, and many of them would not seem like a crime to most people.

There are also thousands of state and local criminal statutes that are impossible for anyone to know. It is estimated that there are more than 10,000,000 words in the IRS code alone, plus all of the other government regulations that everyone is supposed to know and obey — an impossible task — which undermines rule of law.

In his column in The Wall Street Journal on July 13, Dan Henniger wrote: “No more settled part of the West’s tradition exists than due process and presumption of innocence, which are embedded in the Universal Declaration of Human Rights. Believing this Western tradition impeded sexual abuse allegations at colleges, the Obama Education Department issued ‘guidance’ that reversed due process and legitimized the presumption of guilt.”

This “guidance” has destroyed the lives of many young men and others who may have been fully innocent of unproven allegations but were not afforded the basic legal right of due process. Fortunately, the new secretary of Education, Betsy DeVos, appointed a panel last week to review the “guidance” with the goal of re-establishing balance and basic legal protections for the accused.

Many non-government institutions, both public and private, giving into pressures from interest groups, have also eliminated due process provisions in the treatment of their own employees. It has reached the point in some organizations where an employee can make a charge against a fellow employee or supervisor about some comment or action they do not like, and be protected from having their name revealed. Obviously, such practices lead to considerable abuse by disgruntled or mean-spirited workers and great unfairness to the accused.

As a recent example of the dangers of ignoring due process, the retired CEO of a major organization was told that he had made an unwelcome comment to an employee — after he was retired — and hence would not be allowed “unescorted” in the headquarters building where he had maintained an office.

The new CEO refused to tell him what the comment was and who had complained. Some of us who know the situation expect that it was a trumped-up excuse by the insecure new CEO, in an attempt to tarnish and banish his highly regarded and successful predecessor. Due process is a necessary protection against tyranny by both government officials and those in non-government organizations.

The Fourth, Fifth and Sixth Amendments to the Constitution are clear and explicit in their protections of the rule of law, property rights and due process. Judges and members of legislative bodies who ignore these protections are depriving citizens of their liberty and property and ought to be deprived of their jobs.


Richard W. Rahn is chairman of Improbable Success Productions and on the board of the American Council for Capital Formation

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