Distinction without difference

I've seen a lot of commentary over the last few days about the so-called "individual mandate" in the Affordable Care Act (ACA) that discusses how the mandate is beyond the power(s) of the U.S. federal government and that the Supreme Court would be right to strike it down. Those same commentaries, however, then concede that the same federal government does have the authority to raise taxes and then use that money to provide health care, a la Social Security.

Two thoughts immediately come to mind:

1. If the commentary, as described above, is correct, why is there such an uproar about the mandate? If the federal government really does have the authority--assuming it does so via the "proper" means--to force health care on every person within its jurisdiction, wouldn't it be far less injurious to individual liberty to allow people to choose from which provider they will get their insurance and the terms of that insurance? Furthermore, wouldn't it be far more economically efficient if individuals purchased insurance for themselves, saving the cost--both monetary and bureaucratic--of the government having to hire more IRS agents to collect the money and more functionaries to manage it?


2. Isn't the real problem that the U.S. Constitution is all but worthless at this point? That is, if the mandate is such an affront to individual liberty, but the constitution allows the government to achieve the same ends via different means, what good is it as a protector of that liberty?

Who's still standing?

This morning I was reading a story on the Volokh Conspiracy about how a judge in Georgia has allowed a lawsuit challenging Obama's listing on that state's presidential election ballot. A sentence in the middle of the article caught my attention:

Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn’t have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts.

This reminded me of the Kucinich lawsuit against Obama claiming the latter's violation of the War Powers Act in sending forces to Libya in early 2011. This lawsuit was dismissed for a similar reason -- lack of standing:

Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.

I haven't read the decision in this case, but I suspect that the judge's decision rested, at least partially, on the "political question" doctrine. This is the idea that the judicial branch should "avoid inserting itself into conflicts between branches of the federal government" and that "some questions [are] best resolved through the political process". This strikes me as incorrect, as it should be justiciable as to whether or not the president's actions were in accordance with the War Powers Act (or whether that act is itself constitutional). But I digress.

The point is that if the government breaks the law (in a general enough way), it would seem that no one has standing to challenge that action. Say the executive branch eavesdrops on everyone's communications, in clear violation of the fourth amendment, and that this is readily provable and a potential court case is not subject to being tossed under the state secrets doctrine. It seems that the case would still be tossed under the theory that everyone is equally harmed/oppressed, so none have standing to challenge. Furthermore, Congess is powerless here (via the courts) for the same reason Kucinich was unable to stop Obama's action in Libya: Congress has "ample legislative means at their disposal to oppose the President", namely defunding and impeachment.

But defunding and impeachment are themselves political, not judicial actions. They require the votes of members that (may) have an interest in the outcome of these actions that is not necessarily aligned with upholding the constitution or the laws or even the interests of justice. The entire idea underlying the court system is that it is comprised of impartial, disinterested officials. (Whether or not this is true in practice is a separate matter.) The executive and legislative branches are explicitly not comprised of such people. If the court is unwilling to get involved, then we must resign ourselves to the idea that the law is whatever the majority of the Congress says it is (or fails to say that it isn't).

While this may be comforting to some, in that these officers are (in theory) the "people" themselves, democracy is no panacea:

But what kind of person runs for public office? Madison failed to foresee that even the so-called "separation of powers" could not restrain men forever. Entry into politics does not require any particular skill or morality. It simply requires some combination of money, connections, personality, and a desire to rule others, particularly the last one. In fact, that last reason is probably the main reason that anyone runs for office. The idea that the world would be a better place if was in charge is probably not foreign to anyone. To succeed in government, however, involves backroom deals and "compromises" ensuring that only the least moral and most willing to deal away their principles will rise to the top. Thus, government will ultimately be populated with the worst people in society, and it is only a matter of time before they decide to work together to turn their legal authority to use force on the people themselves.

It would seem that we are inexorably on a path to this end in which we will be ruled by the oligarchs in office and their benefactors or by the "people" both of which, in practice, believe that positive law is superior to and therefore trumps natural law. No matter which prevails, one thing is certain: it's not going to be pleasant.

The State or the people: who is sovereign?

A few months ago, I wrote an article about what I saw as the demise of the rule of law. In it, I used the Obama administration's aggressive war against Libya to illustrate that the United States are no longer ruled by law(s). Instead, I argued that their federal government essentially does what it pleases because not only does it make the laws, it is also (solely) charged with enforcing them, and also with interpreting whether those laws are legal. (The legality of laws is a subject for another post.) I pointed to the U.S. Constitution as the source of authority for the federal government and also as the limit of that authority. However, as I've intimated in the past, and said outright in the "rule of law" post, the federal government has become the arbiter of its own power.

That post prompted a series of emails between a reader and myself about the nature of the federal and state governments, the U.S. Constitution, and sovereignty. The reader told me that the U.S. Constitution, in and of itself, was never meant to restrain the federal government. When one really stops to think about it, there's no way that it could. As I pointed out above, the government makes, enforces, and determines the legality of the law(s); there's nothing to stop it from doing whatever it wants. In addition, the U.S. Constitution doesn't even grant any branch of the federal government the authority to carry out that last task. The Supreme Court arrogated that power unto itself in Marbury v. Madison, but I digress.

Instead, the reader contended that it was up to the states and the people of them to restrain the federal government. He continued, though, that the War Between the States essentially crushed that ability. The following Supreme Court case of Texas v. White declared the act of secession illegal. By declaring secession illegal, the federal government was basically declaring the states were not sovereign (any longer). These occurrences, in his view, were the real source of the demise of the rule of law, at least as I portrayed it in my writing. If the states are not sovereign, if the federal government is the supreme authority, then the 9th and 10th amendments to the U.S. Constitution were and are worthless.

Now, the notion that the states were independent, sovereign nations is not foreign to me. It has always been my understanding that the U.S. Constitution was not an act of the states giving up their sovereignty to create a central government but rather one of delegating some of their authority to the federal government in order to smooth and strengthen economic and/or foreign relations. The reason they delegated the authority is not important; what is important is that the authority was delegated, not relinquished. What was foreign to me was what this reader said next: [T]he people of each state are the state's true ruling sovereigns [...] and all government was simply their delegated representatives, not appointed supreme sovereign rulers. Therefore, the People of a state could exercise their national sovereign authority, to overrule those delegates at any time—just like the King of England could overrule his ambassadors.

Until hearing this, my understanding of American government was that the states and/or the U.S. (as a whole) were sovereign nations, that the "government" was, collectively, its ruling sovereign, and that phrases like "of the people, by the people, and for the people" were simply figures of speech meant to convey the idea that there is no divine right to rule (i.e. no king or queen), that the people control the government (via the ballot box). This was the first time I had been introduced to the idea that the people, themselves, were the true ruling sovereigns. Tom Woods explains it quite succinctly:

In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

Where does this idea originate? Is it true? If so, how did I miss it? Since the aforementioned reader pointed to the War Between the States as ending state sovereignty, I started there. I already mentioned the case of Texas v. White in which the Supreme Court ruled that secession is illegal under the U.S. Constitution. I also came across a quote from Lincoln's first inaugural address:

The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

This quote asserts idea that the Union predates the U.S. Constitution but also gives rise to idea that the states were created by a central government, not the other way around. The former is obviously true -- the "union" existed in various iterations prior to the Constitution -- but the latter has no basis in fact. In reality, the Articles of Association merely created a loose association by which the colonies (at the time) banded together to boycott British goods in retaliation for the Intolerable Acts. No central government was created by these articles. In fact, enforcement of the articles was left entirely up to the colonies themselves. Then, just prior to the Declaration of Independence, the Second Continental Congress recommended that the individual colonies "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents".

It's probably worthwhile, at this point, to stop and look at a few of the constitutions drawn up by the colonies. New Hampshire: "The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state". Massachusetts: "The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state". North Carolina: "All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only [...] The people of this State have the inherent, sole, and exclusive right of regulating the internal government". Virginia: "A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers".

All of the states' constitutions of the time contain similar language. Even Hawaii, the last state admitted to the union, has very similar language in its constitution: "All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people". The point of this exercise is to demonstrate that 1.) the states predate any central/federal government, 2.) the states were independent, sovereign nations, unto themselves, and 3.) the people of the states were their sovereign rulers. These facts are recognized in other documents of the time. The Declaration of Independence: "We [...] solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States". The Articles of Confederation: "Each state retains its sovereignty, freedom, and independence". The Treaty of Paris in 1783: "His Brittanic Majesty acknowledges the said United States, [list omitted], to be free sovereign and independent states". The 10th amendment to the U.S. Constitution which confirms that powers were delegated, not relinquished: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In short, the states are sovereign nations, and according to their constitutions, the people are their sovereign rulers. I've pointed to a number of old documents confirming this, but here is something more recent. The Department of State lists (see page 289) the Treaty of Paris' Article 1 (the article mentioned above) as still being in force as of January 1, 2010. Even the federal government, however obscurely, still recognizes that the states are sovereign. It is up to the people to (re)assert this sovereignty.

***

In light of the recent 60 Minutes report on CBS about Sovereign Citizens, it is worth noting that I am not now, nor have I ever been a member of the movement depicted in the report. While I obviously support the idea that the people of the United States are its/their rightful "rulers", I don't support support the violence perpetrated in the name of furthering this idea.

You are not your own

On November 18, 2007, Richard Barnes got into a fight with his wife, Mary. She called 911, and police were dispatched to the scene to respond to a "domestic violence in progress" call. When the police arrived, they spotted Mr. Barnes in the parking lot outside his apartment and began to question him. Mr. Barnes told the officer(s) that he was leaving and that they were not needed. An argument between Mr. Barnes and the officers ensued during which Mrs. Barnes arrived from inside the apartment and threw a duffle bag at Mr. Barnes, telling him to take the rest of his stuff. Mrs. Barnes then returned to the apartment, followed by Mr. Barnes who was followed by the two officers on the scene. Mr. Barnes blocked the officers from entering his apartment, and Mrs. Barnes had not explicitly invited the officers into the residence. When one of the officers attempted to enter the apartment, Mr. Barnes resisted, shoving him against a wall. Mr. Barnes was then subdued by the officers with a choke hold and a taser and arrested for assault (on the officer) and resisting an officer among other charges.

At trial, Mr. Barnes wanted to present an instruction to the jury that he had the right to resist the officers' entry into his home because the entry was unlawful. The judge refused to issue the instruction offered by Mr. Barnes nor any other similar instruction. Mr. Barnes was convicted by the jury, but he appealed the decision. The Court of Appeals agreed that the failure to allow the jury instruction was "not harmless error" and ordered a new trial. Last week, the Indiana Supreme Court ruled against Mr. Barnes:

Now this Court is faced for the first time with the question of
whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. ... We believe [...] that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. ... Here, the trial court‘s failure to give the proffered jury instruction was not error. Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment. [Emphasis added]

Many sites across the web have their various takes on whether on not the officers' entry was justified. I don't intend to take up that debate. The court didn't, so there doesn't seem much sense in my doing so. Instead, I want to focus on the fact that the court has decreed that people have no right to resist the police. Let's be very clear about this point. The Indiana Supreme Court unequivocally stated that the right to resist an unlawful police entry does not exist. It's a very short step to change "entry" to "action".

Essentially, what the court said in its ruling is that when the police enter your home with or without a warrant, with or without announcing themselves as police, with or without even any suspicion of anything, you must simply lie down and take it. Eventually, the courts will sort things out for you. This, of course, assumes that you survive your encounter with the police. You can read all kinds of stories on CopBlock or by William Grigg about people who were unlucky enough to have run-in's with the local authorities. That one should have the right to defend himself and his property against unwanted and illegal aggression should go without saying. The nanny-state and the police-state have officially merged. The government will determine what is best for you. When the government suspects (or even when it doesn't) that you're not acting in your government-determined best interests, it can and will enter your house to find out. And there's nothing you can do about it; the courts will sort it out for you later. Those are the same courts, by the way, that just told you that they can do whatever they want with your home.

There are further reaching effects/implications of this ruling. If the government can enter your home whenever it wishes, who owns your home? Certainly not you because the government has decreed that it can enter whenever it likes, even against your wishes. It would seem then that the government owns your home. How long before your car becomes government property? That already happened when the courts ruled that they can install GPS tracking on it without a warrant.

To be honest, I really don't know how to sum up/conclude this post. I'm having a hard time even writing it because what's wrong with all of this is so innately obvious that I can't even put my thoughts into words. I can't suggest using the courts as a remedy because the courts are the very place(s) where this "law" is being made/handed down.

God help us all. Neither our elected officials, nor the courts, nor even the Constitution which is supposed to protect us from this kind of tyranny are of any use any longer.

An ounce of prevention

I don't like the TSA. I think what it does is an affront to liberty, to moral sensibilities, and certainly to the Constitution that supposedly defines U.S. federal power. That is not to say that I oppose transportation security; I just happen believe that the damage done by the TSA to the aforementioned list of things far outweighs whatever benefit it might be providing. As such, I would characterize it as useless. That much is probably obvious to anyone reading this, either because you've read my other writings or because you're aware of my run-in with the TSA. What is probably unknown to most is that my encounter with the TSA has turned me off to reading about it and, even more so, to writing about it. Being a bit of a news junkie, I tend to remain "aware" of most major occurrences involving the TSA, but I don't, as I imagine most people believe, go out of my way to keep up on every little detail concerning it. In fact, I tend to ignore most of the stories I see about the TSA because I get a very "resistance is futile" feeling whenever I do.

Part of the this feeling comes simply from the fact that no matter what the TSA does, no matter how badly it screws up, the (government) solution has been and will always be to throw more money at the problem. Why people accept this situation is completely incomprehensible to me. Just from a purely economic perspective, it's preposterous. The TSA is a monopoly, and its parent, the federal government, openly and actively uses its monopoly position and power to not only prevent but prohibit competition. This is something that that same federal government makes illegal in the private sector. Moreover, the TSA continues to fail to carry out its own mission statement in which it claims that it "protects the Nation’s transportation systems ...". The TSA has racked up a number of high profile failures on this front including the shoe bomber, the underwear bomber, the loaded gun that cleared screening, and the failures of its own internal tests. The TSA can't even design tests for itself that it can pass (even after the 4th or 5th try depending on which story you read). If the TSA was a private company, it's stock would be worthless, and it would be out of business.

But the continued influx of money, increase even, allows the TSA to continue to fail to uphold the second half of its mission statement as well: "... to ensure freedom of movement for people and commerce". The TSA's website expands on this principle stating that it is composed of "people who conduct ourselves [sic] in an honest, trustworthy and ethical manner at all times". This stands in sharp contrast with reality.

Freedom? I certainly wasn't "free" to move about the country, no pun intended. My "freedom of movement" was conditioned on being groped by a thug in a government-issued costume (h/t William Grigg for that phrase; he likes to call them tax-feeders instead of thugs). It's very fitting that the very first definition of freedom is "the state of being free or at liberty rather than in confinement or under physical restraint" because that is exactly the opposite of what the TSA offers. And what happened to me is, by no means, an isolated incident. The TSA recently went so far as to screen passengers (read: violate their freedom) after they had disembarked from an Amtrak train in Savannah. TSA's "Blogger Bob" tried to explain this away as a Visible Intermodal Prevention and Response (VIPR) operation but then, at the end of the explanation, says that "this particular VIPR operation should have ended by the time these folks were coming through the station". Not only does the TSA's right hand not know what the left is doing, but its explanation that "disembarking passengers did not need to enter the station" and therefore willfully submitted themselves to the search is at odds with a first-hand account stating that "[T]here were about 14 agents pulling people inside the building and coralling [sic] everyone in a roped area".

Honest and trustworthy? Ethical? Finding stories about the TSA stealing from passengers is not a difficult task. A quick search turned up this blog post on the TSA's website in which the TSA talks about the theft for which it is responsible. That post is from early 2008. In late 2008, TSA screener Pythias Brown was arrested after "appropriating" over $200,000 from airline passengers. Long aware of its problems, the TSA has yet to do anything about them. Theft is still a problem for the TSA, but it's not just at the lowest levels as even managers have been found to be accepting "kickbacks" in return for "looking the other way". The TSA has also become very adept at lying to the traveling public as one commenter at the TSA's blog points out. In November of last year, the TSA said that those under 12 years of age would receive a modified pat-down when extra screening was required. Today, the TSA said that the pat down it gave to a 6 year old, in which the agent used the front of her hands for the majority of the pat down and even put her hands inside the child's waistband and shirt collar, is standard operating procedure just like for those over 12. And, of course, there's still the "debate" about exactly how much radiation you get from the TSA's AIT machines and whether or not they can store pictures.

Yet, the TSA remains in business, which brings me to the other reason that I don't typically follow stories about the TSA. Initially, the response to my encounter was very positive (for/to me and the cause of liberty). But as my story reached more and more people, I was subjected to very visceral reactions to what had happened. Many called me an attention-whore, claiming that the whole thing was set up. Some suggested that instead of blaming the government for trying to feel me up, I should blame the terrorists who made the whole thing necessary. But the majority, in various colorful ways, simply said that it was this way or the highway. That is, get felt up or get blown up, and this is the reason that I don't like hearing about the TSA. People are so afraid that they accept the TSA as a given. It makes me angry to read stories or responses along these lines knowing that no amount of rational discussion can be had about what the TSA does (or doesn't do) because the thinking behind those stories and responses is based on fear. No rational or logical discussion can be had with someone who is arguing from a place of fear.

It's a funny thing, emotion. In spite of seemingly infinite documentation of TSA abuses and screw-ups; in spite of the evidence that one is more likely to die in a car on the way to the airport than on the plane or that the odds of getting a fatal cancer from one of the TSA's AIT machines is roughly equivalent to a terrorist attack on a plane, we continue to allow the TSA to go on about its business in the name of "prevention". In fact, I would argue that more liberties are lost (or given up) in the name of prevention of some "terrible" event than any other cause. Guns are taken away and demonized to prevent crime. Gay marriage is outlawed lest it lead to the decay of society. Drugs are prohibited on the grounds that people might overdose and hurt themselves. Gambling is made illegal because people might overindulge and lose their money. Parents aren't allowed to pack their children's lunches because they may not be healthy "enough". Privacy and due process are lost in the name of preventing terrorism. The list goes on and on.

What happens when the prevention, the supposed "cure", becomes worse than the disease, though? Statistics show that guns save more lives than they take. Drug policy actually leads to poor quality drugs and criminal violence. Our government carries out due process free assassinations, and when we find out about it we only dare to question the secrecy of the operation not the legitimacy of the killing. Most damning of all, though, is the article that I found at the end of a link embedded in the story about the 6 year old girl that was patted down this week. TIME asked a child psychologist to explain how to make TSA pat-downs less traumatic for children. What is wrong with us when we're so afraid of our own shadows that we're willing to let government goons touch our children? Have we really come (read: regressed) so far? We're willing to accept the (false) choice: see our children naked or touch them all over. I really hate to play the "think of the children" card here as it is an appeal to emotion and not rationality, but I think it is in order. We've regressed so far that we're even once again willing to accept the "following orders" defense. Says a TSO:

I come to work to do my job. It is not up to me to decide policy, it is up to me to carry out my duties as dictated by the Transportation Security Administration. People fail to understand that neither of us are happy about the intrusive pat down I am carrying out. I am polite, I am professional [...]

And we eat it up. There was no end to the number of people who told me that I was a jerk during my encounter and that the TSO was very professional. I can only assume that the logic, if there is any, behind such an argument is that we should willingly give up our liberty if the government simply asks nicely enough.

And liberty is exactly what this should all be about. Our federal government was instituted to protect our liberty, to "prevent" infringements of it. But "infringe" is exactly what it does. Each of those preventions I mentioned is, in reality, an infringement of liberty. For example, gun ownership is not an aggressive act against another. Gay couples don't infringe anyone's liberty by loving each other, nor does a drug user in his use of drugs. Each of these acts does not, in and of itself, constitute an infringement of liberty, but our government restricts, if not outlaws, each of them which clearly is an infringement. And so 1984 is upon us as the government has taught us all to master the art of doublethink. We simultaneously believe that government protects our liberty while at the same time believing that "prevention" is a valid form of that protection, and if we allow it to continue then something is wrong with us, indeed.

Gresham's law, extended by force

A few weeks ago, a man by the name of Bernard von NotHaus was in the news. If you Google the phrase "unique form of terrorism", you can read all about him. In short, he minted coins in a variety of metals and offered to "exchange" them for Federal Reserve Notes -- those pieces of paper you carry around in your wallet, usually referred to as "money". (His original site is here, but Wikipedia is probably the best place to start if you want to know more.) In 2007, the government arrested Mr. von NotHaus and charged him with a number of crimes amounting to "counterfeiting". He wasn't actually minting pennies, nickels, etc.; he was simply minting coins in denominations similar to U.S. currency that the government claims bears too close of a resemblance to official U.S curency. The government accused him of trying to "replace" the official currency of the U.S. He was eventually convicted of these "crimes", with the government going so far as to declare him a terrorist, and his case is now on appeal.

This whole episode seemed to me to be an interesting application of Gresham's law. Gresham's law is the idea that "bad" money chases out "good" money. What that means is that if there are both "bad" and "good" money in an economy, the good money will eventually disappear from that economy. Since anything could be money (as Lew Rockwell points out: shoes, shells, flash drives, or books) and people can assign whatever value they want to that money, how do we define good vs. bad? That's where the government comes in. Instead of the people assigning value to their money, the government has assumed that role (and the authority to occupy that role). Thus, Gresham's law is more accurately stated as (looking again to Wikipedia): bad money drives out good if their exchange rate is set by law.

Let me give you a personal example of how this is so. Just last week, I was cleaning up one of the bedrooms in my home when I came upon a container full of coins. They weren't particularly special in any way; it was just the type of accumulation that occurs when you come home at the end of the night and toss the change in your pocket into a jar. Thinking I might come across some rare coins -- I was hoping for some old pre-1964 silver coins -- I decided to sort through them. I happened to know that pennies used to be made of copper and nickels, of all things, of nickel and copper. A quick Internet search turned up the fact that pennies were made out of copper up until 1982 and that nickels are still made out of copper and nickel. It also revealed that copper pennies are currently worth approximately 3 cents each and nickels about 6 cents. These coins are worth more as metal than the value given to them on their face. You can probably guess what happened next. I put all of the nickels and pre-1982 pennies into a separate pile. The rest are slated to go off to the local Coinstar machine.

Let me give you another, more obvious example. Let's say the government issues two one ounce coins, one in silver and one in gold, and stamps $50 on their respective faces so that each can be exchanged for $50 in goods. Would you spend the silver coin or the gold coin? Hopefully, you answered, "silver". At current spot prices, an ounce of silver is worth just under $40 while an ounce of gold is a bit over $1,400. When a monetary unit's face value exceeds its intrinsic value, as the silver does in the example, it is "bad" money. It will be spent, i.e. stay in circulation, as the spender believes he/she is getting a "deal" since the seller is forced by law to value the unit greater than the worth that would otherwise be assigned to it by the "market". Gold, whose intrinsic value exceeds its face value in the example, would leave circulation as people would hoard it and/or try to sell it for its intrinsic worth (i.e. they could obtain it for $50 but sell it for almost 30 times as much). This would likely remain true so long as the gold's intrinsic worth exceeds the face value, no matter how slight that excess might be. Even if gold was intrinsically worth less than its face value but still more than the silver, you would still find the silver to be in much greater circulation than the gold for the reasons explained previously.

So, what does all of this have to do with Mr. von NotHaus's situation? Let's first (try to) understand exactly what it was he was doing. To the best of my understanding, a silver Liberty Dollar one-ounce coin would be minted with some denomination on it, let's say $10. It would be produced so long as the intrinsic value of the silver in the coin remained under $10 as denominated in official U.S. currency and sold/exchanged for $10 in official U.S. currency. When the intrinsic value of the coin exceeded $10 (in U.S. currency, due to inflation of the U.S. dollar), Mr. von NotHaus would mint one-ounce silver coins with $20 stamped on their faces (and sell them for the $20 in U.S. currency). He would also exchange existing $10 coins for $20 coins. Based on the previous paragraph and definition(s), Mr. von NotHaus was actually creating his own form of "bad" money, with one important difference. There was a limit to how bad his money would get.

Let me explain this with another example. Let's say that you have a $10 bill (official U.S. currency) and a $10 Liberty Dollar which, for the sake of argument, is accepted at the stores at which you shop. Let's further assume that the food you'll eat today costs $10. Now, let's say that you stick both the coin and the bill under your mattress and wait some amount of time, during which the dollar inflates due to the Federal Reserve's money printing processes. You dig your coin and your bill out from under the mattress and go to the store only to find that the $10 worth of food you want to buy now costs $20. The $10 bill will only buy you half of what you want. On the other hand, Mr. von NotHaus will exchange your $10 Liberty Dollar coin for a $20 version, and you can buy all of your food.

As I mentioned before, Mr. von NotHaus's Liberty Dollar is still "bad" money since its face value would always exceed its intrinsic worth. However, at the point at which it becomes "good" money, the holder would actually be able to exchange it for more "bad" money, i.e. when a $10 piece's intrinsic worth becomes worth, say, $12, it could be exchanged for a $20 piece, a much better option than selling the coin for $12. In this way, while "bad" by our earlier definition, this money is a "better" option than the official U.S. currency which always loses value over time.

If the Liberty Dollar was "better", wouldn't it have eventually been naturally forced out by the market via Gresham's law? It's hard to say; that's (unfortunately) the way markets are. Markets are made up of individual actors, or people. People may have seen the Liberty Dollar as a better preserver of their wealth since it could be exchanged for greater denominations as the U.S. dollar fell in value. Had that been the case, the Liberty Dollar may have taken off. And this would not necessarily have been a violation of Gresham's law. It turns out that "good" and "bad" money (under Gresham's law) can only be compared when their values are both fixed by (the same) law. While von NotHaus may be creating "bad" money in an absolute sense, it would likely have been viewed as "better" than the current U.S. currency. Since the exchange rates of both monetary units are not set/fixed by (the same) law, it may have been possible for the "better/good" money to chase out the "bad".

Thus, the U.S. government extended Gresham's law by force. If another monetary system -- one not controlled by the federal government -- took off, the federal government's ability to print money to pay off its debt and fund its operations would have been severely limited, if not outright destroyed. I'm not sure exactly how to sum up the idea that challenges to a government-created fiat money system will be put down with force in a neat "law" like Gresham's, but if you have any ideas, feel free to share them in the comments.

***

Lew Rockwell wrote about this particular issue and had a few choice quotes:

A nation that is confident about its money’s future would not fear currency competition. A nation with a dying money uses every possible means to crush the competition.

and

[...] when the dollar became all paper, there has been a sense that its viability needs the backing of federal guns in order to thrive. This attitude is inconsistent with freedom. The right of private coinage is an essential part of free enterprise. Currency competition, especially in a digital age, is something that every country needs.

***

Bill Rounds also wrote about this issue. I think he makes a good case that Mr. von NotHaus drew the ire of the federal government, not necessarily by competing with the government, but by making his coins look a little too similar to real U.S. currency. He points out:

There are all kinds of alternate currencies in circulation in the US. Ithaca Hours, Potomacs, gift certificates, and Chuck E. Cheese tokens can all be used to barter and transact instead of legal tender coins and bills.

None of those coins have been or are being forced out of existence by the federal government. Arguably, they aren't trying to compete with the government, either, though.

It's not clear to me, from what I've read, that Mr. von NotHaus intended to defraud people or imply that his coins were legal tender or official U.S. currency. From what I can tell, he was simply trying to give them the same value as U.S. currency to make them easy to understand and trade. In the end, I have to agree with Lew Rockwell when he points out that the U.S. Constitution nowhere prohibits private coinage and even points out that it was commonplace during the settling of the West. Mr. Rounds even acknowledges that the law is, at best, nonsensical:

[...] the state of monetary law is almost nonsensical. Court opinions, federal statutes and the Constitution are logically inconsistent with one another.

***

Finally, I hope that the example I gave of a $10 Liberty Dollar round being exchangeable for a $20 round as the U.S. dollar depreciates drives home the idea of the inflation tax. By depreciating the dollar, the government is essentially stealing money from people who hold cash. This is why our economy is driven by consumption instead of saving. If your dollar is worth less tomorrow than today, then it makes sense to spend it instead of saving it.

"Non-essential" government

This morning, the news is filled with stories about a possible government shutdown due to the budget impasse between both houses of congress and the President. At the end of this story, I found this gem:

The Committee on House Administration also sent out a memo instructing employers in the House of Representatives to determine which "essential personnel" should keep working should funding lapse. The only House employees allowed to keep working would be those whose jobs are "directly related to constitutional responsibilities, related to the protection of human life, or related to the protection of property."

I searched for the entire memo but only found it on a Washington Post blog. Here is the context of the relevant text sent out by Daniel Lungren, the committee's charman:

Should Congress and the President fail to come to an agreement continuing appropriations for the Legislative Branch, non-essential House operations must be shut down effective April 9, 2011. Because a disruption in the legislative activities of the House would prevent the House from exercising its powers under Article I of the Constitution of the United States, essential employees should continue to perform their normal duties.

Therefore, under the authority vested in the Committee on House Administration by House Rule X, clause 1(k), the Committee directs that in the event of a lapse in appropriations for the Legislative Branch, each House employing authority shall designate as essential personnel only those employees whose primary job responsibilities are directly related to constitutional responsibilities, related to the protection of human life, or related to the protection of property. All other House personnel shall be placed in a furlough status by the appropriate employing authority until appropriations are made available.

So, if the an agreement on a budget fails to materialize, then, and only then, will the government will revert to its (supposedly) legitimate responsibilities/functions by virtue of the fact that it will not be able to pay those non-essential people who are, by definition, performing non-essential tasks. One could only hope that the remaining workers, those performing "constitutional responsibilities" will also be performing these duties free of charge, at which point, the phrase "public servant" may actually take on an air of legitimacy. Obviously, the phrase "constitutional responsibilities" is open to wide interpretation as I and many others have written about before, and I know that the remaining workers will still be paid. However, without a budget and far less personnel, the responsibilities of those workers will necessarily limited.

For all of the doom and gloom that people think is possible, I think a government shutdown could be a good thing. It will force people to truly examine "whether or not government works at all". As Professor Bruce Yandle theorizes, "I think we will realize how extensively the federal government is involved in all aspects of life, and we’ll all be surprised." That's obviously a double-edged sword considering the number of people dependent on the government either for employment, unemployment assistance, or welfare. A backlash from those groups could bring the government roaring back. In 1995, the government shutdown was ended by the passage of a balanced budget. I hope our current lawmakers are principled enough to hold out for at least that much, if not more.

The demise of the rule of law

After the U.S. and other nations attacked Libya this past weekend, I posted a portion of one of Laurence Vance's recent blog posts as my Facebook status:

But to American soldiers I would say this: Is there any country you won’t attack? Is there any order you won’t obey? Without a declaration of war or even a congressional authorization, you are just acting as the president’s personal army.

Having broken the first rule of American politics—never criticize the military—I expected a swift and vitriolic reaction to those words. Much to my surprise, none ever materialized. However, I did have to further explain that the purpose of those words, as I understood them, was not necessarily to criticize the military. While the question/statement does call into question the military oaths of enlistment/office, it was intended primarily to draw attention to the President's having sent troops to war without congressional authorization.

This, to me, was a clear violation of Article 1, Section 8 of the U.S Constitution which grants the Congress the power to declare war. It turns out that I wasn't alone in thinking that. Presidential hopeful Barack Obama, in 2007, when asked about the President's authority to send troops into action without congressional authorization said the following:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Since U.S. military involvement in Libya began, the President, via his staff, has gone to great lengths to assure lawmakers and the public that the U.S. is not at war. No less than Defense Secretary Robert Gates seems to disagree, and while he stopped short of using the phrase "act of war", others have not been so reserved in their descriptions of the actions. In fact, the President himself, who now believes he does not need congressional authorization, still took the step of notifying the Congress of military action, "consistent with the War Powers Resolution", anyway. (Wikipedia explains that the use of "consistent" instead of "pursuant" is because Presidents are loathe to recognize limits on their ability to wage war. The word "pursuant" implies that the President recognizes Congress's limit on his office. "Consistent" implies only that the President is following the law, not that he recognizes its legitimacy.)

It's curious, to say the least, that the President felt compelled to notify the Congress while, at the same time, arguing the U.S. isn't at war. Nevertheless, it would seem that the President has placed himself (back) within the law... such as it is. The question of whether or not the President has the power to send the military into action without congressional authorization is still ambiguous, at best, though. When exactly can the President wage war? According to James Madison's notes taken during the Constitutional Convention, the framers intended the President to have the authority to use the military without congressional authorization only in one specific case. During the convention, the legislative branch's power to "make" war was changed to "declare" war for the purpose of "leaving to the Executive the power to repel sudden attacks". However, since Libya did not attack the U.S., nor was it even threatening to do so, it would seem that the President's action is illegal, even considering his notification to Congress.

So, what about the U.N. Charter to which the U.S. is a signatory? On March 17th, 2011, the Security Council adopted Resolution 1973 authorizing a no-fly zone over Libya, and Chapter 7 of the charter allows the Security Council to act with force to enforce its resolutions. Thus, the President claims he is "acting under a mandate issued by the United Nations Security Council" which is binding on the U.S. presumably under Article 6, Paragraph 2 of the U.S. Constitution which gives treaties made by the federal government the force of law. There are two problems with this claim. First, Chapter 1, Article 2, Paragraph 7, of the U.N. Charter specifically prohibits U.N. involvement in "matters which are essentially within the domestic jurisdiction of any state", e.g. civil wars. (Some might argue that the text that follows, "this principle shall not prejudice the application of enforcement measures under Chapter VII" allows for the actions now taking place. I disagree for two reasons: 1) not prejudicing the application of enforcement measures is not the same as allowing enforcement measures in violation of the preceding "principle", and 2) if my first reason is incorrect, then the second half of the paragraph contradicts, essentially nullifying, the first which makes no sense since the section would basically then read "the U.N. has no jurisdiction in domestic affairs unless it does".) The second problem with the President's claim is that Article 6, Paragraph 2 of the U.S. Constitution declares that the Constitution is the supreme authority when it and a treaty made pursuant to it are in conflict. That is, the President's authority to use the U.S. military cannot be increased by any treaty beyond what the Constitution allows.

It should be clear now why the President is working so hard to portray the U.S. involvement in Libya as anything but a war. Based on notes taken during the Constitutional Convention, it is plain that the framers never intended for the executive branch of the U.S. government to have unilateral authority to send the military into action except when timely consultation with Congress was infeasible due to a sudden, unforeseen attack. Since many (but not President Obama as evidenced by his own words in 2007) have forgotten this intent of the framers, President Obama is focusing on this (not) being a war in order to deflect any accusations of usurpation of Congress's authority. Much like the use of "consistent" vs. "pursuant", the meaning of "torture" vs. "enhanced interrogation", and the meaning of "is", the debate will revolve around what exactly constitutes "war". Ultimately government lawyers (the Supreme Court, if the debate ever reaches that level) will decide what "war" is. No longer is the U.S. government subject to the rule of law.

The rule of law is, in part, the idea that no person is above the law. This is in contrast to "ancient" times when the king or ruler of a nation or people was him or herself the law and, in many cases, above or not subject to it. When this nation was founded, Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal", and it is this idea that gives rise to the notion that all people, therefore, should be subject to the same laws. Other writers at the time also argued for this idea. Thomas Paine, in Common Sense, wrote that "in America, the law is king" in reference/contrast to earlier ideas that the king was the law. The Massachusetts Constitution also contains this ideal, using the phrase "government of laws and not of men".

In order for the law to be king, however, it must "possess the characteristics of [...] certainty". And this is where the problem lies. The law is (no longer) certain. Can the government listen to your phone calls without a warrant? Can it see you naked when you try to board an airplane? Can it abridge your right to free association as it is attempting in Wisconsin, among other places? Can it force you to buy healthcare? Can it imprison you indefinitely without trial? Not only are existing laws not certain, but new ones are constantly being added. It has been estimated that "the average busy professional commits three felonies every day", and the government, via its police forces, decides, on its own, which crimes to prosecute and which to ignore. And in cases where the law is unclear, a government lawyer will twist the words of the law to suit his or her purposes, or the case will ultimately end up in front of a judge, employed by the government.

In this way, we are no longer a nation of laws, but of men. The government decides what the law is and when to enforce it. In the case of the federal government, it has become the arbiter of its own power, in contrast to the tenth amendment to the U.S. Constitution. There used to be a fairly well organized and loud opposition to this violation of the rule of law. During the (George W.) Bush administration, the political left was up in arms about the President's usurpation of power. It was constantly demonstrating against his "illegal" war in Iraq. It wanted him to pull troops out of Afghanistan. Now that a Democrat is in the White House, though, opposition to those wars, as well as the current one in Libya, has all but disappeared.

While small government types and libertarians (note the little 'L') continue to oppose war no matter who is in office, it would seem that they constitute a rather small portion of the population. Eric Posner, writing for the Volokh Conspiracy, agrees arguing that "[t]here is no constituency for reforming the executive". There do exist constituencies for limiting executive power when the "other team" is in power, but since the team occupying the White House changes rather frequently, each team ultimately gets to exercise the very powers that they railed against when they were out of power. Thus, no one is really interested in reforming the executive branch, itself.

Posner continues:

arguing that we should return to the original Madisonian design is tilting at windmills [...] these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.

[...] Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment [...].

I can't tell you how dismaying it was for me to hear, correct as it may be, that arguments for a return or adherence to Madisonian design, that the people should be ruled by laws and not men, are on the fringe, but there you have it. The rule of law is dead.

How did (tea party) patriots act?

The House of Representatives failed to extend the PATRIOT Act provisions that I wrote about a few days ago. This is good news, but the fight is not over.

The Patriot Act was moved to the floor under suspension of the rules — a provision that requires two-thirds majority (290 votes) to pass and is often used for noncontroversial legislation. After holding the vote open well past the 15-minute window, it failed 277 to 148 with five Republicans and four Democrats not voting.

Republican leaders will bring the bill back to the floor under a rule, where it will almost certainly secure the 218-vote threshold.

[...]

Twenty-six Republicans voted against the Patriot Act extension, but only eight were freshmen — Reps. Justin Amash (Mich.), Mike Fitzpatrick (Pa.), Chris Gibson (N.Y.), Randy Hultgren (Ill.), Raul Labrador (Idaho), Bobby Schilling (Ill.), Dave Schweikert (Ariz.) and Rob Woodall (Ga.).

Of those eight freshmen, it appears that all were Tea Party-supported candidates. It's encouraging to see these officials stick to their professed ideals. I hope that this is a continuing phenomenon. According to this article at MSNBC, though, at least forty house seats went to Tea Party-backed candidates. Cross-referencing the list at MSNBC and the outcome of the vote, the following is a list of Tea Party-backed candidates voting for the bill:

Tim Griffin (AR-2), Paul Gosar (AZ-1), Steve Southerland (FL-2), Allen West (FL-22), Sandy Adams (FL-24), Bob Dold (IL-10), Adam Kinzinger (IL-11), Marlin Stutzman (IN-3), Todd Young (IN-9), Jeff Landry (LA-3), Dan Benishek (MI-1), Tim Walberg (MI-7), Michelle Bachmann (MN-6), Vicky Hartzler (MO-4), Renee Ellmers (NC-2), Frank Guinta (NH-1), Joe Heck (NV-3), Michael Grimm (NY-13), Steven Chabot (OH-1), Bill Johnson (OH-6), Steve Stivers (OH-15), Jim Renacci (OH-16), Tim Scott (SC-1), Jeff Duncan (SC-3), Trey Gowdy (SC-4), Mick Mulvaney (SC-5), Scott DesJarlais (TN-4), Bill Flores (TX-17), H. Morgan Griffith (VA-9), Sean Duffy (WI-7), Reid Ribble (WI-8), David McKinley (WV-1)

That's thirty-one out of forty voting for the bill (77.5%), eight voting against, and one no-vote. Despite the eight nay votes, Tea Party-backed candidates overwhelmingly supported an extension of the PATRIOT Act. That's not good for anybody.

How will (tea party) patriots act?

Here's another story that isn't getting a lot of attention. Sections of the PATRIOT Act are up for renewal this month. A renewal was introduced in the senate at the end of January by Patrick Leahy (D-VT) to extend this unconstitutional legislation. Last week, James Sensenbrenner (R-WI) introduced a renewal to much the same effect, proving once again that statism is endemic to both parties.

A quick summary of the provisions at issue from the ACLU:

• Section 215: of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities
• Section 206: of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped.
• Section 6001: of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization.

Where is the outrage at this sweeping government power? Where are the news stories warning us that the 4th amendment, among others, no longer has any teeth? Where are the Tea Party activists who screamed so loudly for a smaller federal government, the abolition of Big Brother, and the restoration of our rights, not to mention our dignities? There are some who are fighting the good fight, even if in words only:

[...] Laura Boatright, a tea-party organizer in Ontario, Calif., says the act is "unconstitutional," adding, "We can have national security in other ways, without making all the American people relinquish their liberty."

I'm suspicious of Ms. Boatright's "other ways", but acknowledgment of the PATRIOT Act as unconstitutional is a plus in my book. The Tea Party doesn't appear to be immune to statism and the lure of big government, though:

Ryan Hecker, a Houston lawyer and tea-party organizer, says he believes the act has helped curb terrorism and "the movement should remain agnostic."

Right. Agnostic. Nothing to see here; things are fine just the way they are. How did this guy get involved with a group of people that supposedly adores the constitution and limited government? Oh, that's right. They all simply want power and control, and trotting out the idea of the big, bad terrorists will keep the people in fear and, more importantly, maintain their acquiescence. The Republicans have certainly wasted no time in peddling that fear:

"The intelligence and law enforcement communities that are responsible for preventing terrorist attacks need to know that the tools they rely on to keep the American people safe will not be weakened or allowed to expire," said House Judiciary Committee Chairman Lamar Smith (R., Texas).

And with that, we should all be prepared for the Tea Party to betray its constituents and all citizens after going the way of every other politician: seduced by power, greed, and the desire for re-election to perpetuate those aims.

A House bill would extend the law without change through Dec. 8. Republican aides say such a move is the most likely outcome to give lawmakers more time to debate the issue.

No matter, though, the executive branch is prepared to carry on even without congressional approval:

Attorney General Eric Holder has said the Obama administration [...] plans to put many of the safeguards in place even without passage of the law.

TSA in the news

John Pistole has put the kibosh on privatization (h/t Jonathan Adler) of airport screening. I suppose this was inevitable. The best way for the government to maintain it's tight-fisted control of the traveling public and, by extension, the citizens is to make sure the operation is entirely government run from top to bottom.

I'm all for privatization of screening so long as the private sector is solely in charge of it and the TSA/FAA/etc. is out of the picture. I thought I had written about privatization under TSA direction before, but I must be remembering a message sent to a staffer in my congressman's office. The short version is that privatization under TSA direction is possibly the worst possible outcome. In this situation, airline travelers would have their privacy violated by a private entity. Even though this would be at the government's direction, I believe the courts would not look favorably on a 4th amendment infringement claim because the government, itself, is not conducting the search. With the government performing the screening, a 4th amendment claim is still a viable option. Though, making that claim would be an uphill battle.

***

The TSA is "upgrading" its body scanners:

The Transportation Security Administration's new software made its debut on Tuesday at Las Vegas airport, and produces a grey 'cookie cutter' outline of the passenger, rather than the embarrassingly anatomical images that gave the devices the nickname 'porno scanners'.

Suspicious items detected by the scanner are highlighted on the operator's screen as little red boxes. Hands-on traditionalists will be pleased to note that passengers who trigger the alerts will still be subject to the very rigorous frisking that caused most of the complaints in the first place.

[...]

Kate Hanni, founder of the California-based group FlyersRights, called the new software "a great step forward."

"We're grateful to the TSA for addressing these issues that were of concern to so many people," Hanni said. "But privacy was our secondary issue. Our primary concern about the body scanners is that they are ineffective. We're also concerned about the possibility of surges in radiation."

I got the chance to speak with Kate a number of times and was interviewed with her during my TSA run-in. She's doing good work continuing to draw attention to the TSA, but I have to disagree with her on this. The TSA's "change" does nothing to address privacy. The government is still conducting suspicion-less, warrant-less searches of people at the airport, and when the result isn't to its liking, passengers will still be subjected to a groping. If anything, this is a "great step" backward because the change will likely mollify the masses. With their naked pictures no longer being seen by someone, they'll likely forget all about the fact that they're still giving up their privacy rights (supposedly) protected by the 4th amendment.

The three branches of government

This was too good to pass up.

Chuck's been in congress for over 30 years and he still doesn't understand the basic setup of the federal government. Or perhaps, he doesn't want to. That pesky judiciary is always telling congress what it can and can't do. Though over the years, it would seem that the judiciary has done little to check the power of the executive and legislative branches. Maybe old Chuckie understands better than me the way it works and is just telling it like it is.

Non-infringement vs. Protection

GeorgiaCarry.org sued the state of Georgia to be able to possess their guns at a church. They were joined by the minister of the church and had the church's permission. That wasn't sufficient, though, because Georgia (apparently) has a law forbidding guns in churches.

The district court ruled for the state:

Defendants’ third objective, protecting the free exercise of religion, is an important governmental interest. The free exercise right is enshrined in the First Amendment to our Constitution. Although the Constitution protects a person’s right to free exercise only against governmental intrusion, it is clear that the protection of religious freedom against private bias or coercion is also an important governmental goal. See, e.g., 42 U.S.C. § 2000e-2(a) (prohibiting discrimination in employment on the basis of religion). Prohibiting the carrying of firearms in a place of worship bears a substantial relationship to that important goal by protecting attendees from the fear or threat of intimidation or armed attack.

I don't even know where to begin. A private entity wants to allow guns on their own property, but the government says, "no". The people's right to keep and bear arms can be infringed because of the possibility of "private bias or coercion"; that is, the government can take action because a crime might be committed, in the absence of any evidence of said crime. None of this even addresses the idea that because the private property is a church, the government is treading dangerously close to first amendment violations, itself. None of this matters to the government, though. It has "governmental goals".

And that's where my real issue lies. The government's "goal" is not to protect free exercise of religion from anyone except itself. In other words, the government's role is not to protect free exercise of religion. It is to not infringe upon it.

Scariest thing(s) I've seen in awhile

Saw this on an Internet forum I frequent:

I think it's wrong to look at the Military as a defensive tool, only to be deployed in defense of our country.
It is an instrument of political, social, and ECONOMIC might.
Fighting for oil or to promote economic stability is as patriotic as fighting to physically defend your homeland.
If it makes the country stronger in any way I'm for it.
The more global the economy becomes the more important it is that everyone play nice and do business and if America has to carry a big stick and bust some heads once in a while to achieve that then so be it.

It was followed shortly thereafter by another who said:

[I agree]
Oil is an essential part of the economy and our nation. It cannot run without it so it is worth war. Even though the two current wars in the Middle east are NOT because of it.

These comments were in response to someone asking about people's feelings about "liberals" who hate the military. Like any Internet discussion, the comments took off in a number of different directions, but these comments especially caught my attention because despite the tendency of this forum to lean somewhat to the (political) right, the people there generally seem to have their heads on straight with respect to freedom and liberty.

To hear people suggest that might makes right, that because we have a strong military, we should be able, if not have the right, to impose our will on others is really very sobering to me. I once heard someone say that the Tea Party doesn't have a coherent view of liberty. I don't want to make any statement about the Tea Party other than to say that these comments illustrate the point the gentleman was making at the time. For all the talk about freedom and liberty, many people seem to think that those things are reserved only for Americans and that our military is not simply a defensive tool but can and should be used to promote our own well-being at the expense of others'.

How can anyone simultaneously cry foul at U.S. government's trampling on its citizens' rights while at the same time demanding that it trample on someone else's? Rights come from our Creator, not the constitution. The constitution does not grant rights but instead restrains the federal government from infringing them, and people who truly understand what liberty and freedom are understand that all people have those rights.

***

Glenn Greenwald writes about the U.S. government's treatment of its detainees, specifically Bradley Manning, the army private accused of leaking classified information to WikiLeaks. I'll admit that I'm a little conflicted about Mr. Manning's case. On the one hand, he allegedly leaked documents in violation of his promise to keep them secret. On the other, assuming he did leak them, he's brought to light a number of horrible, horrible things that the government has done in its pursuit of the wars in Iraq and Afghanistan. In the end, I think he ought to be commended for bringing these things to light. It's unfortunate that his "crime" against the government is getting all of the coverage instead of the crimes committed by the government. That's not what really scares me, though.

Read Glenn's article. What scares me is the treatment of Mr. Manning, a U.S. citizen, who has not yet been convicted of any crime and his visitors who have not even been accused of any crime. This treatment screams authoritarian "police state" and people of all political stripes, regardless of their feelings about Mr. Manning should be appalled by his and his visitor's treatment.

Disappointing court cases

The Volokh Conspiracy has more in depth write-ups for both cases.

In the first, in Illinois, the ACLU has sued the state to get injunctive relief from the Illinois Eavesdropping Act so that citizens may record police officers in order to deter and detect abuse. The court ruled against the ACLU saying that the first amendment does not protect recording in this case. I have a hard time finding fault with the court's ruling, such as it is. I don't really see the connection between recording and free speech. What's disappointing to me about this, though, is the state's unwillingness to allow its agents to be recorded in their official capacity. I often hear the argument, "if you're not doing anything wrong, then you have nothing to hide." Why doesn't the same apply to the state?

In the second, a court in Florida upheld a police search as legal despite its concerns that the search was not consensual as the police claimed and, even more damning, that the police were outright lying about the circumstances under which the search occurred. Here is the court's characterization of the police's testimony:

On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet the appellate court still held the search to be legal, affirming the lower court's ruling. If one can't find justice in the courts, where can one find it?

How to boil (control) a frog (society)

This morning I got a call from a radio station in Phoenix, AZ asking about a ruling from the Ninth Circuit Court of Appeals in which the court held that a strip search and pat down of a male inmate by a female officer was unconstitutional under the 4th amendment. The interviewer was interested specifically in how I thought that this ruling relates to the TSA's warrant-less searches at the airports. I told him that in light of the Ninth Circuit's ruling in February of last year upholding strip searches of prisoners, generally, as constitutional, this case would probably not be very meaningful. The only similarity between this (current) case and the TSA procedures is the fact that the person sitting in the "other room" looking at body scans may not be of the same sex as the person being scanned. I have a feeling, though, that in its traditional deference to executive claims of national security, the court would not find the body scanners to be an unreasonable search because of the "anonymity" between the TSA agent and the person being searched.

A much better point, I thought, to come out of the interview was that people at the airport are treated virtually the same way as are inmates in the prison system. That is, people who have done nothing suspicious other than decide to travel by air are subjected to exactly the same search procedures as people who have broken the law, been arrested, been tried, been convicted, and been sent to prison. Here is a description of the search at issue in the case decided this week, and it sounds almost exactly, though this description is more explicit, like what was described to me when I tried to fly two months ago.

...the cadet touched the inmate’s "inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts" and "moved his penis and scrotum in the process of conducting the search"

I can't resist pointing out, somewhat tongue in cheek, that inmates get this treatment for free. Airline passengers have to pay for it.

When asked if I thought that this comparison (airline travelers to prison inmates) would irk people enough to get them "fired up" about the searches they are forced to endure at the the airport, I answered that my experience has been that people are ruled more by their fears and desires to feel safe than by any desire to be "free" (as in freedom). And until people find the searches to be "unreasonable", it is unlikely that anything will change or that any relief will be found in the courts, given the test employed by the courts as created by Justice Harlan in Katz v. United States, 389 U.S. 347 (1967).

One of the things that the interview touched on but didn't delve deeply into is this "reasonable" test. (On a separate but related note, I think there is an argument to be made that the founders of this country considered all searches and arrests without warrants to be unreasonable and that "unreasonable" is not a term that was meant to be reinterpreted with the passage of time, but I digress. That's for another post.) The second prong of Justice Harlan's test is whether "society is prepared to recognize that this expectation [of privacy] is (objectively) reasonable", and it would seem that society is not prepared to recognize a person's privacy at the airport. Be that as it may, what "society" should consider in making that judgment is the ratchet effect. Governments rarely relinquish power that has been given them. Societies, in a similar manner, judge tomorrow's events by today's, not yesterday's. What I mean by this is that the standard by which tomorrow's searches are measured is today's searches. A little over 10 years ago, one could get on a plane with nothing more than a ticket. Then people were required to show identification. Then they had to take their shoes off and then heavy coats. Then people were subjected to "normal" pat downs. Now, they are subjected to a virtual strip search and/or an "enhanced" pat down. Imagine if people went one day from anonymously boarding a plane to the next day having to show identification, take off their shoes and heavy clothes and being subjected to a virtual strip search and/or an "enhanced" pat downs. People would never have gone for it. Instead, they are being slowly boiled like the proverbial frog and don't realize it. Even if the war on terror were to come to an end someday, which it most assuredly will not, these searches won't go away. They'll be cemented in society's collective mind as "reasonable".

***

Unrelated to the interview, I found it interesting that the court ruled cross-gender searches "unreasonable" under the 4th amendment. The 4th amendment only addresses the search, not who performs it, and the Ninth Circuit had already ruled searches of this type to be constitutional. It seems to me that the claim would have been better brought and adjudicated under the 8th amendment. Given that the inmate claimed that the search was humiliating and caused psychological trauma, the argument that he was subjected to cruel and unusual punishment would have been more appropriate. It seems to me that the court contradicted itself, if only slightly.

On hiatus

It would appear that my "15 minutes" has just about come to an end, and I couldn't be happier about it. When I stood up to the TSA two weeks ago, I had no idea that the story would become national news and that people would call me a "hero" because of what I had done. I am simply a guy who reads way too much news, likes to ride his bike, and generally tries to maintain a low profile.

For many of you, the statement that I try to maintain a low profile probably flies in the face of my having posted about my ordeal on the Internet. I've explained already why I filmed it. The reason I posted it, though, as I've explained in a few interviews, was to try to generate a stir, locally, in the hopes of dissuading the government from suing me and levying the fine with which I was threatened. I did not ask for the celebrity that this has brought me nor am I particularly enamored of it. I will admit that it has been a real honor and privilege for me to speak with people that I consider celebrities including local radio personalities and even national bloggers. I also appreciate the thousands of people who have written to express support and thank me for what I did.

I also appreciate the people who took the time to calmly and rationally write to me expressing disagreement with my views and what I did. I have a tremendous amount of respect for people who are able to disagree without being disagreeable, and I am sorry that I have not had more opportunity to correspond with them. They are the very reason that I started writing this blog in the first place. I wanted to generate discussion so that I could be better informed, so that I could learn about how other people think about issues, so that I might have my mind changed when I am wrong.

Doing what I did though has also elicited some of the most vitriolic responses that I've ever witnessed, let alone been the target of. Someone even took the time to find my home address and send me a piece of hate mail (anonymously, of course). It's one thing for people to hurl insults at me over the Internet. It hurts, to be sure, but I realize that the "cost" of doing so electronically is low, so I can dismiss it to a certain extent. To actually receive something in the mail, however, is unnerving. So, to all of you who have called me a loser, a moron, who have questioned my patriotism, the size of my genitalia, and who have called me an attention-seeking whore: you win.

I believe that standing up for the rights protected by our constitution, in particular those protected by the 4th amendment, and for my dignity was the right thing to do, and for that reason, I would do it again. Was it worth it? Up until now, I've been somewhat evasive in answering that question. What I did has ignited a real debate about how much liberty we are willing to give up in exchange for (perceived) security, and that is definitely a good thing in my mind. On the other hand, what I did has brought me a lot of attention, which I would rather do without. In the end, though, I have to answer to myself for what I've done, and on that front, I have to answer: yes, it was worth it. I'm proud of what I did, and I hope it inspires others who also believe that the government's primary and overriding responsibility is to protect liberty and freedom to do the same.

And with that, I'm officially on hiatus from writing. For those of you who couldn't wait for my "15 minutes" to be over, cross your fingers that this is it. For those of you who are interested in or wish to have a discussion about what I have to say, stick around, and I'll probably return to writing in a few weeks when I am no longer in the spotlight. Comments are disabled for the time being, but I will do my best to respond to respectful inquiries about my story, thoughts, and/or opinions.

Flying is a "privilege"

I've gotten a lot of feedback from people about my interaction with the TSA last week stating that flying is a privilege, not a right. It is a privilege granted to me in consideration of payment of a fee to the carrier and comes with terms defined by a contract that I agree to when I purchase a ticket. The arguments along these lines fall generally into one of two categories: 1.) the purchase of the ticket implies agreement with the conditions of the contract and, thus, there is no right to complain about or opt out of the security procedures, or 2.) if one doesn't like the security procedures, one doesn't have to or shouldn't fly.

The first argument has simply to do with contract "law". (I admit, right here at the beginning, that I am not a lawyer of any kind, so don't misconstrue any of what you are about to read as legal advice.) A contract is essentially an agreement between two or more parties in which they define the terms of their interaction. In this case, I (actually, my father-in-law, but I'll pretend it was me) gave money to the airline. In exchange, they agreed to fly me to my destination subject to a number of conditions, the most important of which (for this discussion) were those pertaining to the security screening to which I would be subject. At the time of purchase and up until I arrived at the airport, it was my understanding that this screening involved passing through a metal detector, not an AIT machine. This was based on information on the TSA's own website. So, at this point in time, I have paid for a ticket and have agreed to be screened via metal detector and perhaps a "wanding" and pat down of a specific area, if necessary.

Upon arriving at the airport, I found that AIT machines were in use. From my perspective, this would put the airline in breach of contract. That is, the terms to which I agreed, that I would be subject to a metal detector, had been unilaterally altered. However, the metal detectors were still in use. There was a possibility that the contract, as understood at the time of creation, could still be carried out by the original terms. When I was selected for the AIT machine, though, this became an extremely remote possibility. (Since the TSA agents never allowed me to use the metal detector, the contract had at this point been breached.) I opted out of the machine, as TSA procedures allow. Still, I believed there was a possibility that I would receive a "standard" pat down as opposed to the one described in the video documenting my experience. I was willing to continue to try to keep the contract from being broken. Once the pat down procedure was described, however, there was no continuing. I would not subject myself to the described procedure, and now both parties were in breach of contract.

There are two ways to deal with this situation. The first is to enforce the contract. This means that I could require that the airline, via the TSA, live up to the terms as understood at the time of the creation of the contract. Alternatively, the airline, via the TSA, could require that I submit to the new screening methods. We both suggested these alternatives during the course of the discussion, but neither was mutually agreeable. Since neither party, at the time, seemed given to coercion, we had to turn to the second option. This second option is to void the contract. In this scenario, one or both (or all) parties determine that the contract is no longer in their best interest(s), and they agree to void the contract. Here, they all agree to return things to the state at which they were prior to entering the contract, possibly subject to some damages for duties performed under the contract that cannot be undone. I agreed not to fly; the airline refunded my money. Actually, the airline could have had a strong argument that they could not reasonably expect to resell the seat that I gave up and should be able to keep some or all of the money paid to them. In this case, they were gracious enough to refund the full fare. My contract with the airline was now over.

The interesting thing about this is that after the agreement had been terminated, the TSA continued to try to enforce the terms of the contract by asking me to return to the screening area. Not only that, but the TSA was employing coercive means (the threat of a fine) to enforce a non-existent contract. This is where the second argument, that if I don't like it, I shouldn't fly comes into play. This argument is not as black and white as it would seem on the surface. If the airlines were responsible for security, the "if you don't like it, you don't fly" argument would be a valid one, and this final interaction with the TSA would not have occurred. Once the government becomes involved, however, it is a party unto itself. By that, I mean that it creates rules that to which one can "agree" via entering into contract with the airline but from which, it contends, one cannot escape. Given that the TSA, over the years, has employed rules, policies, and procedures that have been kept secret from the flying public, there is no way that anyone can legitimately claim that a passenger has knowingly agreed to all of them. In spite of that, as a government agency, the TSA believes that it has the authority to use coercion to enforce contracts that cannot possibly be fully understood and, in my case, no longer exist.

The problem is bigger than that, though. The government, via the TSA, is saying that travelers can opt out of the protections afforded them by the U.S. Constitution. The problem with this is that there is no comparable alternative to flying for travel over long distances. By federalizing the security of all air travel, the government has severely limited (note that I do not say "removed") people's ability to move freely about the country by making them choose between air travel and their 4th amendment protections. Taken as a whole, the government is effectively removing the restrictions placed on it by the constitution by making it seem as though the people are willingly accepting the change:

1. The government finds an activity in which a great many people engage and which is difficult for them to avoid.
2. The government then begins to regulate said activity with disregard for whether or not the authority to regulate said activity or the manner in which it regulates is constitutional.
3. The government then uses people's continued participation in said activity and acquiescence to the regulation as an indication that its regulation is not only legal, but desired.

At this point, the government is free to operate outside of its own laws because it has forced the people to accept its actions because the alternative would be financially ruinous or prohibitively time consuming.