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Ann Arbor (Special to Informed Comment) – According to the Chicago Sun-Times Trump is being sued for denying stimulus checks to U.S. citizens who file jointly with spouses lacking a social security number. Assuming the administration regards unregistered aliens as “illegal”, this would be tantamount to guilt by association for their spouses. Many legal immigrants who have not yet acquired a green card have permission to work without a US social security number, so the assumption that they are undocumented is unwarranted.

Can it be fortuitous that guilt-by-association was a standard feature in the legal arsenal of China’s most notorious tyrant, the First Emperor of Qin (259-210)? Less expected is that, after the collapse of that Empire, the Han Empire repealed those laws, marking a watershed in Chinese legal history. On the First Emperor’s side of the line, if your spouse was guilty, then so were you. On the other side, guilt was understood as individual, based on the facts of the case. Spouses, children, or others were not held accountable for an associate’s crimes. This Han period law was taken as a model throughout Chinese history, while the First Emperor was condemned as a tyrant for over two-thousand years.

The legal reasoning in this case is pertinent to the Trump order. It began by noting that the purpose of law is not merely to repress crime, but equally to protect innocence. Working from that premise, the text deduced that, if government criminalizes people unreasonably—without evidence in this case—that would injure innocent men and women. It goes on to say “any law that harms (innocent) people is tyrannical,” not to mention “illegitimate.” In other words, the government has no legitimate authority to punish innocent people who have not personally broken any laws, even if a relative or friend has done so. Trump’s order implies instead that innocence is no obstacle.

Granted, guilt-by-association was common in premodern societies, but China was hardly unique in treating it as repressive. The Whig statesman Lord McCauley (1800-59), referring to the persecution of Catholics, unequivocally rejected the idea: “To punish a man, because we infer from the nature of some doctrine which he holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime, is persecution, and is, in every case, foolish and wicked.” Implied is the principle that guilt must be assigned on the basis of individual actions.

This view became mainstream in Anglo-American practice, as recognized in the 1943 Supreme Court case Schneiderman v. United States. In its decision the Court affirmed that guilt is personal, and cannot be attributed based on vague associations. Of course, despite that decision, the McCarthy era managed to revive guilt-by-association for a time, but historians do not regard that moment in U.S. history as particularly enlightened.

History also shows that guilt-by-association is not a stand-alone policy. It has serious implications for justice and administration. This is evident already in the Han period law. Underlying that law was a set of institutions for assigning responsibilities to officers on the basis of demonstrated expertise. Han law simply extended the principles of bureaucratic practice to the judicial system, demanding facts for the assignment of guilt. It follows that reversing that decision would require abandoning the entire system of administration based on facts and expertise. As it turns out, that is exactly what Trump is doing.

Just days ago in Foreign Affairs, Daron Acemoglu identified key features of an authoritarian turn in the Trump administration, in particular its war on “the norms of professionalism, independence, and technocratic expertise, and prioritizing political loyalty above all else.” For a historian, rating personal loyalty over facts is a typical feature of feudal systems. That is why historians treat the rise of expertise as marking a shift away from feudalism toward rational policy-making.

Not coincidentally Professor Acemoglu’s essay identified other rational practices overturned by the Trump administration, including “expectations that the president would not tell outright lies; would not interfere in court cases . . .would not materially benefit—or allow his family to benefit—from executive power and privilege; and would not discriminate against citizens on the basis of their race, ethnicity, or religion.” Again, historians will find these trends disturbingly familiar: in feudal societies, law is what the king says it is; facts are whatever the king says they are; nepotism is both normal and legal; and power is for rewarding loyal vassals and punishing everyone else.

If East and West, the rejection of guilt-by-association has been correlated with enlightened government, and that view has been mainstream in the Anglo-American tradition, then Trump’s new executive order is not merely “abandoning U.S. citizens when they need help the most.” It upends a long history of legal opinion holding that governments do not have the authority to punish the innocent. This then begs the question: where does Trump get the authority to do that?

References:

Eisenstadt, S. N. The Political Systems of Empires. New York: Free Press, 1969.

John Lord O’Brian, “Loyalty Tests and Guilt by Association,” Harvard Law Review, Vol. 61, No. 4 (Apr., 1948), pp. 592-611.

Martin Powers, China and England: the preindustrial struggle for justice in word and image. London: Routledge, 2019, Chapter 7.

Forrest Williams, Comment in The American Scholar, Vol. 18, No. 4 (Autumn 1949), pp. 500-501.

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Bonus Video added by Informed Comment:

CBS New York: “U.S. Citizens Missing Out On Stimulus Checks Based On Spouse’s Immigration Status”