280
Thomas, J., dissenting
define official extortion under the Hobbs Act by reference to the common law, its definition bears scant resemblance to the common-law crime Congress presumably codified in 1946.
A
The Court's historical analysis rests upon a theory set forth in one law review article. See ante, at 260, and nn. 4-6 (citing Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815 (1988)). Focusing on early English cases, the article argues that common-law extortion encompassed a wide range of official takings, whether by coercion, false pretenses, or bribery. Whatever the merits of that argument as a description of early English common law,2 it is
pretext or cover for the commission of some corrupt or vicious act; an act evilly done, by the countenance of an office; an act unjustly done by the countenance of an office; an act wrongfully done by an officer under the pretended authority of his office; and is always taken in the worst sense, being grounded upon corruption, of which the office is as a mere shadow or color; under statutes, the phrase is used to define an illegal claim of right or authority to take the security; some illegal exertion of authority, whereby an obligation is extorted which the statute does not require to be given") (footnotes omitted).
2 Those merits are far from clear. Most commentators maintain that extortion and bribery were distinct crimes at early English common law. See, e. g., J. Noonan, Bribes 398, 585-587 (1984); Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo. L. J. 1171, 1179-1180 (1977). While—as I explain below— Professor Lindgren may well be correct that common-law extortion did not contain an "inducement" element, in my view he does not adequately account for the crime's "by color of office" element. This latter element has existed since long before the founding of the Republic, and cannot simply be ignored. As Chief Justice Mountague explained over four centuries ago, colore officii sui ("by color of his office") "signifies an Act badly done under the Countenance of an Office, and it bears a dissembling Visage of Duty, and is properly called Extortion." Dive v. Maningham, 1 Plowd. 60, 68, 75 Eng. Rep. 96, 108 (C. B. 1550) (emphasis added). See also 3 E. Coke, Institutes *542 (describing extortion as "more odious than
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007