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Clarence Darrow Puts the State on Trial

Tags Legal System

07/15/2011Doug French

[The new introduction to Clarence Darrow's Resist Not Evil (1903; 2011). An MP3 audio file of this article, narrated by Colin Hussey, is available for download.]

You always remember books that change your mind, because these books are so few and far between. We're drawn to books that reinforce what we already believe. It makes us feel smarter that an author shares our opinion and provides words we can use to make our case on the off chance that's required.

After Murray Rothbard opened my eyes at UNLV in 1990, I went on a book-buying binge that included an edition of the book you hold, Resist Not Evil. I can't honestly remember why I bought the book from Loompanics, other than the bookseller's catalog description must have in some way piqued my interest.

At the time I remember being on the fence, with a slight lean toward supporting capital punishment. The deterrence arguments resonated with me. However, it was a hard question, akin to the issues of abortion and immigration. In the end, to not support capital punishment put a person with the bleeding-heart liberals, company I didn't want to be in.

But this is the way with so many issues. Instead of analyzing the problem for ourselves, we let the group we identify with make the decision for us as to what we believe. That's a lazy way to live, requiring no thought, no study, no consideration, no introspection.

Clarence Darrow does not allow for that. He does not allow you to sit in the jury box of public opinion and let the other jurors make up your mind. Resist Not Evil is not just an indictment of capital punishment. The state is on trial, and Darrow is arguing for the prosecution.

And there is a no more passionate, articulate prosecutor than Darrow. It is impossible not to be swept away by his rhetoric. Like any good attorney, Darrow anticipates every argument, and proceeds to crush them in page after page of some of the best prose you will ever read.

Although he wrote it in 1902, Darrow anticipates the prison nation that America is today. All areas of life become part of the penal code, with an army of people operating as police, legislators, and the court system to enforce these laws through force and violence.

The state is set up not to administer justice but to punish. No victims are compensated, but the state gets its pound of flesh. Writing more than a century ago, Darrow focused on crimes against property, the predominate crime for which the state "penned" offenders at that time.

Today, burglaries, besides not being sexy, are too hard to solve, and not a cash generator for local, state, or federal law enforcement. So now it's the war on drugs that clogs America's prisons combined with initiatives from Washington to "get tough on crime."

America has the highest incarceration rate in the world. One in 100 of us is behind bars, judged by a monstrosity created only to mete out vengeance. The citizenry is all too happy to cheer while people they don't know are sent away for years and decades for what may have been one mistake.

Darrow points out that the state doesn't consider the whole of a person's life when administering punishment for the one offence. A life of good deeds is no defense for a teacher who has consensual sex with a student. The public cries that this is wrong, and the judge, considering his next election, is all too willing to pen her up for decades.

The state ensures that we don't get to know the perpetrators. These men and women (many of whom are moms and dads) become less like people we might like or identify with. That makes it easy for the public to allow the state to judge, convict, and punish.

The state now says the people who bought what was formerly an over-the-counter allergy medication too many times in too short a period of time are criminal. The local newspaper dutifully does its part, printing mug shots and naming the offense so the neighbors can sneer in disgust. Few reading the newspaper understand these people were merely responding to the economic incentives the state's war on drugs created.

If the state says they're bad and must be punished with a couple of decades in the penitentiary, and the local paper confirms the state's story, then perfect strangers suddenly judge them as the state has: "Yes, lock them up. They are bad."

Darrow sees those judged by the state to be more honorable than those within the state doing the judging. There are numerous examples in popular modern culture of characters engaged in criminal activities who not only have the sympathies of the audience but are viewed as heroic.

The day-to-day emotional and family struggles of fictional modern mobster Tony Soprano casts him in a much different light to audiences than the state would judge him in real life. The same goes for housewife-turned-marijuana-seller Nancy Botwin on Weeds, or chemistry-teacher-turned-crystal-meth-producer Walter H. White on Breaking Bad. No one can empathize with prohibition agent Nelson Van Alden, but it's easy to root for the various criminals on Broadway Empire, or vigilante serial-killer Dexter, or pill-popping Nurse Jackie.

While network TV still produces its share of police and court-system dramas, current audiences would rather watch reality competition or talent shows. While years ago audiences were drawn to street-cop detectives like Dragnet's Joe Friday, these days it's work in the crime lab that stimulates (primarily older) viewers. Cops on the street are portrayed as drunks, thugs, and opportunists, as was best portrayed on The Wire.

However, in real life, the community has no sympathy for those engaged in activities the state deems wrong.

Darrow starts Resist Not Evil by calling the state what it is: a violent aggressor. And a violent institution must have armies, functionaries, and civil governments to punish those who offend. Unlike Hans Hoppe, Darrow views monarchy as no better than democracy, but it's interesting that Darrow makes the point that monarchs respected each other and thus were not engaged in world domination.

Darrow lacked the benefit of Hoppe's insight that monarchs have lower time preferences because rule stays in the family, allowing rulers to think long-term and be more peaceful with their neighbors. High-time-preference elected rulers in democracies must steal and pillage in the short time they are in office with power.

At times Darrow writes that doing business is the equivalent of extortion and embezzlement, believing that the underclass are pillaged by the upper class that is protected by the state's property laws and enforcement apparatus.


Ludwig von Mises explained that in a free market it is the consumer who is actually in charge, and that the wealthy only get that way by serving consumers.

However, if Darrow's words are viewed in the light of today's crony capitalism, where the privileged are allowed private gains with the public left to absorb any losses — and where the opening of any sort of business venture is a privilege to be granted only with the state's approval, then Darrow's words in this area cannot easily be dismissed.

With the 110th anniversary of Resist Not Evil approaching, there are millions of Americans caught up in the nation's penal system, most punished for arbitrary crimes of the state's concoction. It is again Clarence Darrow's moment, providing the clearest indictment of the state and its violence.


Doug French

Douglas French is President Emeritus of the Mises Institute, author of Early Speculative Bubbles & Increases in the Money Supply, and author of Walk Away: The Rise and Fall of the Home-Ownership Myth. He received his master's degree in economics from UNLV, studying under both Professor Murray Rothbard and Professor Hans-Hermann Hoppe.