Every educated American fancies themselves a constitutional scholar, but it's rare for a layman to be so brazen as to claim the role of legal historian. Meet Alex Tabarrok.
Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding...If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law .Ok, first things first: Alex's main point has nothing to do with the common law, and it's a fine point. Essentially he thinks too much is illegal in modern society, especially under federal law, and that that should make you nervous. Agree or disagree, I don't have much to say about that.
But nearly everything he says about the supposed golden age of the common law is wrong. This is long and technical, but worth doing:
A. "Most crimes used to be based on the common law..."
Not really. For those that don't know, the common law was judge made law that came to define much of our early legal regime. But it never existed alone, and statutes (IE, what we normally think of as "laws") have always been an important source of criminal law. For example, the greatest articulation of the laws of England (remember, we were their colony and inherited the common law from them) at the time of the founding (ok, just before the founding) is Blackstone's Commentaries on the Laws of England. To pick a random chapter, this list of offences against public trade cites 11 crimes, only 3 of which were crimes at the common law (at least insofar as Blackstone mentions) and all of the rest of which were specified by statute. This mix of common law crimes and statutorily defined crimes also existed in 19th century and early 20th century America, right up until Americans started drafting criminal codes instead of relying on the common law.
Maybe if someone counted they would find that, yes, at some point in some (or most) states there were technically more common law offenses than statutory offenses, but the idea that Americans used to understand criminal law as the special realm of the common law just isn't, as far as I know, true.
B. "Most crimes used to be based... on ancient understandings of wrong"
This is more arguably true, but I think it's important to add that many crimes during the glory days of the common law, while perhaps based on some ancient understanding of wrong, certainly don't fit our understanding of wrong. I didn't actually pick the chapter of Blackstone linked to above at random, I picked it because Tabarrok is an economist and almost every crime listed there would horrify him. Let's list the chapter's common law crimes:
1. Owling: transporting wool or sheep out of England, to the detriment of English cloth manufacturers. I'm pretty sure Tabarrok opposes protectionist measures like this.
2. Cheating: this ranges from what we would now call fraud to stuff Alex does not now think should be illegal, including making bad beer or disobeying government price fixing. Blackstone is not actually clear where statute ends and common law begins on this one.
3. The offense of forestalling the market: this is just buying something before it comes to market or talking someone into not bringing it to market. I don't think most Americans would agree that saying, "Hey, Joey, why not just hold onto your cow instead of selling it" violates a fundamental understanding of wrong.
Common law crimes we would find abhorrent or silly or surprising are not limited to economic crimes. For example, spreading false news against great men (felony punishable by imprisonment at common law), heresy (only a misdemeanor at common law), and the mere speaking, with no attendant act, of treasonable words (misdemeanor).
Now it can fairly be said that not all of this applied in 19th century America, obviously, and Tabbarok could argue that he is hearkening back to a 19th, not 18th century golden age of common law. It could also be argued that Blackstone might be too late a source, and earlier in English history judge made law was more dominant and less inter-meshed with statutory laws. But this raises further problems: as you travel into the 19th century legal principles Tabarrok doesn't like began to surface (he seems disdainful of the crime of attempt, for example, which really began to take root in Britain in the 1780's). As you travel further back, legal principles Tabarrock speaks highly of had not yet developed (In england, mens rea only began to be thought of as required for almost every crime around the 17th century, for example (I think)). So it's not clear what time period, exactly, Tabarrok wants to look to as the glory days of common law.
All that said, I am not an expert. It's possible there was, at some time, a common law state where A. the criminal law largely consisted of common law, and B. it matched a modern understanding of right and wrong. But I doubt it.
C. "But today there are thousands of federal laws that bear no relation to the common law or a common law understanding."
That's arguably true (no relation is a bit much. There is no federal common law, but common law principles still suffuse federal law), but I want to forestall a possible rhetorical trick and this is as random a place to do it as any: a defender of Tabarrok could say that his focus is entirely federal, so I shouldn't mention state common law in my response. But I have to: there weren't many (any?) federal crimes at the common law. For Tabarok to be making any sense, he has to be comparing the common law of England or American states to current federal criminal law.
D. "Remember, under the common law mens rea, or criminal intent,"
"Mens Rea" doesn't mean "criminal intent," it means "guilty mind," and refers to the mental state that must accompany most criminal acts for them to be illegal. Intent is a type of mens rea, and the one most used under common law, but not the only one. Negligence or recklessness or malice aforethought were other types of mens rea.
E. "... was a standard requirement for criminal prosecution."
Sort of. As the common law went along, Mens Rea did come to be thought of as a requirement for crimes, reflecting the growing influence of ancient roman law on the common law. But things were still kind of confusing: it wasn't really clear what mens rea requirements attached to what crimes (lots of those crimes listed by Blackstone, for example, don't specifically define a mens rea), and even as things began to be defined the definitions came piecemeal, with every crime getting its own idiosyncratic mens rea ("intent to deprive another of their property" for larceny; "malice aforethought" for murder; "a blameworthy state of mind regarding consent," among other definitions, for rape). Generally these were divided into two camps: specific intent crimes, where the criminal intended some harm; and general intent crimes, where the criminal simply intended to do the criminal act but did not necessarily intend the subsequent harm. But even that distinction was more confusing than helpful. Point being, "mens rea" was never simple, well defined, and easily grasped under the common law. When arguing how intuitive and simple the common law was, you can't just say "criminal intent was a standard requirement for criminal prosecution," without heavily footnoting that sentence.
Further, I suspect some common law mens rea requirements don't quite fit what an average person might think was fair. For example, if I intend to slap an "Alex is Dumb" sign on your back via notebook paper and tape (intend an offensive touching), miss because you suddenly duck, and accidentally slap the person beside you (doctrine of transferred intent), and their brittle bone syndrome causes a serious injury, I am guilty of a serious felony (obviously the judge or prosecutor or jury will go easy on me, but Tabarrok sneers at such safeguards). But if I was going to put the sign on our class's doorway, it suddenly opened, and I slapped the innocent bystander, I am guilty of no crime. Maybe Tabarrok thinks that the first slap should be a felony, maybe he thinks that the distinction between the first and the second slap makes sense, but to me "meant a harmless prank, now guilty of felony battery" sounds like the sort of legal horror story Tabarrok was telling in his post, and the distinction between "accidentally slapped a guy after trying to put dumb sign on your back" and "accidentally slapped a guy after trying to put dumb sign on door" seems meaningless. Longwinded point being: you can get bad results for seemingly harmless conduct under the common law, too.
F. "but today [a the requirement that a mens rea accompany an actus reus] is typically no longer the case, especially under federal law."
I am pretty sure this is false or misleading. There are two kinds of criminal codes in America: those based off of the common law and its principals and those based off of the Model Penal Code (a model code without the force of law some clevermen drafted in the 60's). The federal criminal law is more-or-less the former. As a result, while it does have strict liability felonies (ie, statutory rape or, as Tabarrok points out, trespass to federal parks), most federal laws require *some* sort of mens rea. Indeed, there is supreme court precedent encouraging judges to interpret ambiguous federal statutes to require a mens rea requirement. Just so, one of the crazy laws Tabarrok lists, obstruction of correspondence, has a mens rea requirement, specifically that the crime be done " with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same." (As a total aside, while it wasn't a crime at the common law, obstructing the delivery of the mail has been a crime since 1792, so it's a weird one to pick as an example of how our crazy modern criminal laws are so much worse than the past).
The caveat is misdemeanors and crimes punished by mere fines, which often don't have a mens rea requirement. For all I know, if you count them it is true that most federal criminal laws are strict liability offenses. But Tabarrok makes a point of how easy it is to commit felonies and harps on the seriousness of many of these crimes, so I think it's fair to demand that, if he is going to claim that federal law has abandoned mens rea requirements, he make it clear that he is mostly speaking in the context of misdemeanors .
Just as an aside, model penal code states (Texas, for example) are much better about this than common law jurisdictions. The model penal code strictly defined four levels of mens rea (five if you count strict liability) and specified that 1. unless otherwise stated, those mens rea requirements apply to *every* element of the crime, and 2. if no mens rea is mentioned in the definition of a crime, one should generally be read into the statute (this does not apply for "violations," basically a term of art for crimes with light punishment). Strict liability felonies exist under the model penal code, but rarely.
In other words, the model penal code does a much better job than the vaunted common law when it comes to ensuring there is a clear, broad mens rea requirement attached to every major crime. Instead of looking to the past, Tabarrok might want to look to the MPC for a successful counterexample to federal law.
So I want to emphasize that while I probably know more about the law than Alex Tabarrok, I am not a legal historian and don't practice criminal law, so some of this may be wrong. I also want to emphasize that Tabarrok is smarter than me and is a better economist than I am lawyer. But, by dent of not being one, he is a much worse lawyer than I am, and I am confident that at least *some*, if not *most* of how he compares the common law to modern federal criminal law is incorrect or misleading.
You may well ask why Tabarrok drags the common law into this argument in the first place, since the newspaper piece he is quoting does a great job of arguing that we have too much federal criminal law without bothering to mention the common law at all. The answer, I suspect, involves his adherence to a strain of thought that began with Hayek (I think) and has probably best been articulated by judge Richard Posner, one of the greatest living American jurists around. These fellows value the common law as an example of emergent order, thinking it's bottom-up approach to building a legal system beats the pants off of top-down, statist attempts. I think the general consensus among legal scholars these days is that those guys got it wrong, but I'll blog about that another day.
So yeah, apologies to anyone who actually read all of that.