Eyesores vs. Property Rights in a Libertarian Society

Non-libertarians love to come up with ideas about how, in a libertarian society, some ill would occur which (in their mind(s)) cannot be corrected without the violent force of government. Eyesores -- the kind of blight upon a neighborhood that lowers property values -- were recently considered at Libertarian News:

The way [an eyesore] would be dealt with, in the absence of home owners associations, state regulations, zoning restrictions, etc…, is through the homesteading principle. Private law courts would basically look at who was there first and decide based on the homesteading principle. 

Consider this example: 

If a person owns a home in a nice neighborhood and a pig farmer decides he’s going to setup shop across the street from them, private law courts would uphold any eyesore/smell complaints brought by that homeowner as being legitimate.  However, if a person buys a home across the street from a pig farm, then comes to the courts to complain about the eyesore/smell of the farm, the courts would not recognize that complaint as being legitimate.  The homeowner bought the home in full knowledge of the condition of the environment around it and agreed to purchase the home at that price, which would surely be at a bargain because of the pig farm.

This homesteading principle applies to all businesses and homes. If a person moves in next door and starts destroying their lawn and putting junkers up on blocks in the front yard, their neighbors have a legitimate right to sue for property value damages if the previous condition of the lot was in good upkeep.

I don't think this is right at all. The first (and probably least costly) mistake, in my mind, is lumping homeowners associations in with state regulations and zoning restrictions. The latter are imposed by the state; the former is usually structured as a private corporation owned and run by the homeowners themselves -- one which would fall completely within the homesteading principle as the author describes it. It is very rare for someone to buy a home and have an association imposed on the property at some later date. Rather, the homeowners association is, almost without exception, the prior existing entity. In this situation, the prospective owner chooses to enter an agreement with the association upon buying a the property, or he selects a different property. The source and legitimacy of homeowners associations' power are of course muddied by state interference; however, for the purpose of this discussion, they can be considered to be completely private, voluntary entities relying solely on contract enforcement to achieve their ends. Inasmuch as this is the case, it is clear that there is at least one means by which eyesores can be dealt with in the absence of state regulation.

The more egregious mistake in the original article is in declaring that property owners have a right or ownership in the value of their property. One of the commenters to the original article jumped on this point:

Nobody has a right to the _value_ of their property, since value is subjective and exists in people's heads. Consider the entrepreneur who creates a brilliant new mode of transport, he hasn't infringed on the rights of car manufacturers, even though his invention has harmed the market price of the cars they're trying to sell. The same is true of the person who decorates his property in a way his neighbor disapproves of--absent a contractual breach, he hasn't infringed on anyone's rights.

And the author conceded the point:

Yeah, you are right that pollution needs to be some kind of physical violation of their property's integrity.

I'm actually not surprised by this mistake. It took me a day of thinking to figure out exactly where the fallacy was. What tipped me off to it, though, was the authors use of the homesteading principle to solve the problem. For those unfamiliar with the homesteading principle, it is the idea that one becomes the rightful owner of some previously unowned property (land) by "mixing his labor" with it. In the author's example, the prior landowner had some amount of veto authority over the latecomer. Using the idea of homesteading, this implies that the prior landowner/homesteader gains not only an interest in the land with which he actually mixes his labor but also in the surrounding land. Not only that, but his interest in the surrounding areas would have to be superior to the latecomer(s) by virtue of the fact that he (apparently) has veto authority over what the latecomer would do with his property. If we follow this line of reasoning further, we'd eventually find that the prior owner could restrict the latecomers free speech rights by declaring that political placards/signs were offensive, freedom of expression by vetoing his choice of color to paint his house, and possibly even his choice of Ford vs. Chevy.

Property rights must be (nearly) absolute as they are the basis for the idea that one owns his own body, the only restriction being that one does not use his property rights to violate another's. And, as I've often heard Stephen Kinsella say, "genuine rights cannot conflict". Therefore, either the latecomer doesn't really own his property -- and, by extension, the first owner owns not only his own land but also has controlling interest in all of the surrounding land -- or the first owner does not really have a right/ownership in the value of his property. I reject the first proposition simply on the basis of the homesteading principle. This owner has not "mixed his labor" with his neighbor's property. Furthermore, assuming the implications of the original author's description of homesteading, there is no logical end to the amount of land to which the first owner could lay claim. This solution is simply unworkable.

We are then left, as the quoted commenter points out, with the idea that there is no ownership in the value of property. This, in my opinion is the correct view. Values are subjective and therefore exist individually only in the minds of the people attempting to appraise the value of an object. As such, attempting to fix or determine a value by law or decree is essentially a form of (attempted) thought control. For more on this subject, Rothbard gives the ownership of "ideas" a thorough treatment in chapter 16 of The Ethics of Liberty.

Where's the beef (with capitalism)?

Over at Arm Your Mind for Liberty, a recent article takes issue with capitalism. I read this article with great interest because (I assume) it grew out of a discussion between myself and the author as well as some others regarding capitalism. When I read it, though, I couldn't find that the "beef" is really with capitalism at all. Before going too much further, we should probably start with a (common) definition of capitalism, but I'm not going to attempt to define capitalism in great detail. It seems that if you ask ten different people, you'll get ten different answers about what capitalism means to them as the linked article states:

‘Capitalism’ is a funny word. It means so many different things to so many different people, that it’s become entirely useless as a basis for any kind of rational or constructive communication. [...] Some will mention wage labor, others exploitation and yet others will talk of free trade. But I think the defining feature is the ability to accumulate lots and lots and lots of stuff (capital).

Fair enough. The ability to accumulate lots (and lots and lots) of stuff, or capital, is most assuredly a characteristic of capitalism and, as we will see, the article's main problem with it, so let's focus our attention there. Before we do so, the original article takes a slight detour:

And then, most importantly, [a characteristic of capitalism is] to have a third party protect your ability to control that stuff even when you’re not using it. That third party, of course, is the state (the government). [...] Without this ability to accumulate and have your title to said stuff protected at little to no cost to yourself, things like wage labor, exploitation and managed trade could not happen. These all depend on the power imbalances that stem from the state protecting capitalists’ control of their property.

Whoa, wait just a minute! Now, we're not talking about capitalism any more. We're talking about a state-directed ("managed trade") and state-enforced ("stuff protected at little or no cost to yourself", presumably via taxation on the whole population and "power imbalances" in the form of state-chartered police and enforcement mechanisms) economic system, our current system, what many call crony-capitalism. So, we can already see that the author's problem is not with capitalism, per se, but with crony-capitalism and the state enforcement of it. The author continues by stating that he doesn't "think capitalism would survive without the state".

But we're not talking about capitalism any more. We're talking about the state. The author offers no evidence or theories as to why capitalism cannot or will not exist without a state other than to say, "I don’t think a non-aggressive organization will go to the same lengths as the state to protect property". This is demonstrably false, however:

Just think for a moment about the following:

• Who is responsible for protecting you at most major shopping centers? Ever see a private mall cop? I bet you have.
• How about casinos? Almost all casinos have private armed security.
• What about at the dance club? Ever see a bouncer throw out a belligerent drunk?
• What about at the university? You’d be hard pressed to tell the difference between a public safety officer and a cop. Many universities have private police forces.
• How about warehouses, ports and apartment complexes? It is not uncommon to have private security guards protecting all of those. My apartment complex has its own security.
• Airports used to be entirely protected by private security – and guess what? No one was complaining about being molested. Further, after 9/11, it was the airlines who made real improvements to security by putting in steel cockpit doors and arming the pilots.
• Banks? - Almost all bank cash transfers are dealt with by way of private armored car, and many banks have private armed security as well.

Now I've been drawn into a digression about capitalism on a larger scale. Let's return to the accumulation of stuff in the original article and look at an example provided by the author describing his issue with it: "if someone fences off 1,000 acres of land but consistently uses only 2, I don’t consider that legitimate". This situation draws its basis from the Lockean idea of homesteading, that one becomes an owner of land by "mixing" his labor with it. I'm not going to argue whether fencing 1,000 acres constitutes a mixing of labor. A debate on such a matter is not likely easily resolved.

Instead, what if we arrived at this situation differently, voluntarily? Let's assume two people and call them A and B. Each of them own 501 acres (via legal means, homesteading or otherwise) and farm the entirety of their respective plots. A and B both consume only what they need to survive and sell the rest of their produce into the marketplace. A saves the proceeds from his sales under his mattress while B spends his money on vacations and house keepers and other consumable goods and services. (One has to wonder, at this point, if B has a claim to A's money since storage under A's mattress is not "productive" use in B's mind.) At some point, bad weather conditions befall A and B. A, having saved his money, is able to buy what he needs from the marketplace, but B has nothing. Seeing B's plight, A offers to use some of the rest of his savings to buy 499 acres of B's land. B, needing to feed himself and his family, reluctantly agrees. Now A owns 1,000 acres, and B owns 2. We've arrived at the evil capitalist situation described by the author in the original article, but we've arrived by completely legal and voluntary means.

Let's assume that A, having just bought the land and exhausting much of his savings, does not have the capacity to expand his farming operations into his newly acquired 499 acres. When the weather improves, does B have a legal right to reacquire the land, via homesteading? What if B had kept the land but sold his farming equipment to A to pay for his food? Now that B is incapable of farming his land (and has no reasonable prospects for doing so since he has no farming equipment and no savings with which to buy any), can A also freely acquire B's land under the homesteading principle?

The author of the original article seems to think so: "If someone needed land and had a solid intention to use it to sustain his life, I would support that person in any attempt to homestead a reasonable parcel out of the 1,000 acres". B, in our example, has every "intention to use [the land] to sustain his life" as well as others'. The author goes so far as to suggest that force is an appropriate means to affect this outcome:

In a stateless society, people would be freer to rise up against people who attempt to control more property than they actually use. Acting in concert, great numbers of people could, in the worst case, purchase arms, form a defense force and fight capitalists on a more level playing field. Squatters, worker-owned cooperatives and similar direct actors would take control of more of the capitalists’ property. In the process, their power would be eaten away.

In fact, A has saved B's life as well as his family's, and in return B should have the right to use violent force to take back from A what was voluntarily given/traded (by B himself!) to A? What the author is suggesting is either a clear violation of the non-aggression principle or will require a state, with a legal monopoly on the use of violence, to forcibly give A's land to B.

The only other argument in favor of what the original author is suggesting hinges on the word "reasonable". Perhaps 1,000 acres is an "unreasonable" amount. Much like the hypothetical debate about homesteading to which I alluded earlier, a common definition of what is "reasonable" is not easily resolved. As an example, here are a bunch of pro-gun people on a pro-gun forum disagreeing about what "reasonable" gun laws would look like. At any rate, the example I gave above works with any sized parcel of land. In fact it becomes even more difficult to reason out on a smaller scale. Consider if A and B each owned two acres and A bought 1 acre from B. A is in a much better position to farm an additional 1 acre than he is an additional 499. What if A incrementally continues the process, voluntarily acquiring parcels from C, D, E, etc. in a similar manner? When does the amount of land that A owns become "unreasonable"? Does the situation change if A rents the land back to B, C, D, E, etc.? Who makes that decision and who enforces it? What authority does this entity have when A can show that his property was acquired legally? None, according to the author of the original article: "If a person prospers legitimately, I have no basis to challenge any accumulation of wealth." Wait, what? Does B have a claim to A's legitimate accumulation of wealth (in the form land) or not?

In short, capitalism, true capitalism, is not an economic system that is imposed on anyone. It is an economic system that arises from, or rather is the result of, voluntary interactions in a truly free society. In fact, the economic system proposed in the original article is not only incoherent but, in the author's own words, requires violent enforcement. I suggest that the author's "beef" is not with capitalism but with a free and voluntary society.

Torture instead of prison

Leo Katz has been blogging over at the Volokh Conspiracy this week. He's written a book called Why the Law Is So Perverse, and Volokh is giving him the opportunity to pimp it by writing about subjects covered within it. Today, he posted an entry entitled The Problem of Voluntary Torture in which he lays out the following (imaginary) proposal:

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”

He then gives his own opinion of it:

I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution. 

Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator’s proposal. The question is why?

In answering his own question, he assumes the win-win nature of the proposal to be a given and then argues that there are valid reasons for certain kinds of mutually beneficial arrangements to be prohibited including "force or fraud or incompetence or bad effects on third parties", none of which, he admits, are applicable in this case. Ultimately, he concludes "that some other as yet unidentified reason must be at work here". He, of course, will explain this in another post or, for the impatient reader, already does in his book which the reader is invited to purchase.

First, Mr. Katz' belief that this proposal, despite his reticence to implement it, is a win-win is spectacularly incorrect. Given his starting point, the current prison system, it's not hard to see why he went wrong. Society already already pays a great price to imprison criminals. According to the Bureau of Justice Statistics, the U.S. spend almost $75 billion per year to house inmates. States vary widely on costs, but with the prison population hovering a little under 3 million, the average is just over $23,000 per inmate per year. Just imagine if instead society tortured these individuals mercilessly for a few days or a week or even a month! If the costs scale linearly, then society would pay less than $2,000 per inmate per incarceration, and surely torture would provide enough deterrent to keep prisoners from committing their crimes again.

The obvious problem with this is that torture is not simply a physical act that ends when the pain subsides. It is also has psychological components, and both of these have long lasting effects. Nor are these effects limited to the recipients of this torture. Imagine being an employee at a facility that offers this type of "correction". It would be like watching the Saw movies back-to-back-to-back for at least 8 hours a day, 5 days a week, only the characters are real people, and there is no way to turn off the movie. Employees of such a facility would, in the end, suffer just as much -- probably more -- than the prisoners themselves. Imagine further those actually charged with carrying out the torture as a regular profession. We would literally have to find the worst of the worst of society -- worse than the prisoners themselves -- train those people to become perfect in their craft, and then pay them to carry out the most heinous acts that one human being could commit against another. That, I submit, is not a society.

Exposing the sheer insanity of this proposal has probably been a waste of time given that even Mr. Katz is against it. But the fact that it is even brought up is incredibly ironic, given the reaction to the idea of torturing prisoners. Mr. Katz, like the rest of the population, doesn't fully comprehend the nature of the prison system even though he mentions it a number of times in his post. It is so ingrained in most people's minds that they don't even see it. Look back to the "wild-eyed" legislator's first words:

“The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution.

The purpose of the prison system is to punish, and "the point of punishment is pain". If we accept this premise, then society is already engaging in torture of a more mild variety. A variation on an old joke springs to mind:

A: Should society imprison criminals?
B: Absolutely.
A: Should society torture criminals?
B: Absolutely not; what kind of society would that be?
A: We've already established that; now we're just seeing how far it will go.

Back to the legislator's words, the point of punishment is pain and the point of pain is deterrence and retribution. Deterrence is well and good, but the fundamental problem with the prison system is the retribution. When someone commits a crime, the justice system metes out retribution. Who benefits from this retribution? Only the justice system -- and, to an extent, the prisoner -- benefits. The victim doesn't benefit in any tangible way. Whatever damage may have been done is not repaired, nor is the victim compensated (over and above the actual damages) for the  "inconvenience" of being victimized. Nor does society benefit since society has to pay for the trial and incarceration of the criminal. Furthermore, it has to deal with the effects of prison on the criminal (no marketable job skills, inability to function in the "real world") when the criminal has finally served his/her time and is released. But the justice system benefits as money must be poured into it to house an ever growing number of inmates. And while incarceration is certainly no picnic, the incarcerated "enjoy" 3 meals, a bed, and a roof over their heads at the victims' expense.

What if, instead, the criminal justice system focused on restitution instead of retribution? First, a number of crimes would simply disappear. If police picked up a prostitute, to whom would he/she pay restitution? In order to answer that, we would have to pinpoint the damages caused of which there are none. The same goes for someone getting high in his garage. Second, victims, instead of the justice system would be compensated for the commission of a criminal act. This is obviously straightforward in the case of crimes involving money or things that can easily be assigned a monetary value. The victim is repaid his loss plus some extra as compensation for the inconvenience and to serve as deterrence of future crime on the aggressor's part. It seems less straightforward in the event of non-monetary damages like physical violence, but this should not be so. Society has already decided how long a prison sentence should be based on murder, manslaughter, physical violence, etc.; it is not a far leap to think that money could be substituted for time. And what of failure to abide by a sentence? Imagine if when someone refused to obey the law and by extension punishment for breaking it, society simply refused to extend the protections of the law to that person? This is what a criminal justice system in a voluntary society, one without an entity granted the legal ability to use force might look like.

Climate change denial != science-averse

I just watched this clip from last night's Daily Show:



Another segment of this show was devoted to poking fun at various pundits' criticism of science and scientists. Putting this interview in the context of that previous segment sheds a little more light on Mr. Stewart's apparent confusion about the "resistance" to science. The reason is apparently that climate change deniers are all crazy, liars, or idiots or possibly all of the above.

Let me suggest another alternative: people don't want more government intervention. Assuming for a second that climate change is real and further that it is man-made (thus implying that it is man-reversible), then the logical next step is government intervention to combat this scourge. This likely entails more regulations on emissions which means increased costs for fuel and cars, government subsidies to "green" businesses which means gambling tax dollars on politically connected businesses, and limitations on production of goods considered to be non-"green" or produced via non-"green" methods which means violation of property rights.

My point is that climate change "deniers" are not necessarily science averse. Their reticence to accept it may be based more on a desire to prevent greater government intervention or simply on the idea that climate change better be really "for-damn-sure" before government guns are used to forcefully reorganize society around its implications.

How quickly we forget

I received an email containing a number of complaints about the current administration. On the theory that, in reality, this administration is no different from the last, or any other for that matter, I present the following.

If any other of our presidents had doubled the national debt, which had taken more than two centuries to accumulate, in one year, would you have approved?

When Clinton left office, the federal debt stood at 5.8 trillion. Bush increased this to 10.4 trillion by the time he left office. The current federal debt as of the government's last fiscal year stood at 11.9 trillion. Bush doubled the debt, not Obama.

If any other of our presidents had then proposed to double the debt again within 10 years, would you have approved?

In Bush's last year in office, the federal government spent 3.1 trillion dollars. The federal government spent 3.09 trillion in the last fiscal year on record, a 2.4% decrease from Bush's last year.

One also has to remember that Bush refused to make the wars part of his budget and continually funded them through emergency funding measures. So, any claims that Bush was going to balance the budget are without merit.

If any other of our presidents had criticized a state law that he admitted he never even read, would you think that he is just an ignorant hot head?

"As a governor, he did not appreciate the federal government stepping in, telling states what to do," Fleischer said. 

Later, he amended his comments: "The president believes that all policies, state or federal, need to respect the culture of life. He differs with Gov. Davis on this."

If any other of our presidents joined the country of Mexico and sued a state in the United States to force that state to continue to allow illegal immigration, would you question his patriotism and wonder who's side he was on?

http://www.foxnews.com/story/0,2933,341316,00.html

If any other of our presidents had pronounced the Marine Corps like Marine Corpse, would you think him an idiot?

http://www.ehow.com/how_2272065_mispronounce-words-like-george-bush.html

If any other of our presidents had put 87,000 workers out of work by arbitrarily placing a moratorium on offshore oil drilling on companies that have one of the best safety records of any industry because one foreign company had an accident, would you have agreed?

http://articles.latimes.com/1990-09-18/news/mn-596_1_offshore-drilling 

http://danieljmitchell.wordpress.com/2010/07/24/bush-pelosi-and-reid-deserve-scorn-for-destroying-jobs-for-teenagers/ 

http://www.reuters.com/article/2009/04/01/us-usa-economy-employment-idUSTRE5303F820090401

If any other of our presidents had used a forged document as the basis of the moratorium that would render 87000 American workers unemployed would you support him?

http://articles.cnn.com/2003-03-14/us/sprj.irq.documents_1_weapons-inspectors-documents-nuclear-weapons?_s=PM:US

If any other of our presidents had been the first President to need a Teleprompter instaled to be able to get through a press conference, would you have laughed and said this is more proof of how inept he is on his own and is really controlled by smarter men behind the scenes?

http://www.dailytelegraph.com.au/news/weird/jorj-booshs-fo-ne-tik-promt/story-e6frev20-1111114505516 

http://www.dailytelegraph.com.au/news/world/blundering-bush-winks-at-queen/story-e6frev00-1111113491771

If any other of our presidents had spent hundreds of thousands of dollars to take his First Lady to a play in NYC, would you have approved?

http://www.politicususa.com/en/obama-bush-vacation 

http://www.usatoday.com/news/politicselections/nation/president/2004-06-01-air-force-one_x.htm

If any other of our presidents had reduced your retirement plan holdings of GM stock by 90% and given the unions a majority stake in GM, would you have approved?

http://www.politico.com/news/stories/1208/16740.html

If any other of our presidents had made a joke at the expense of the Special Olympics, would you have approved?

http://www.guardian.co.uk/world/2004/mar/26/usa.iraq

If any other of our presidents had given Gordon Brown a set of inexpensive and incorrectly formatted DVDs, when Gordon Brown had given him a thoughtful and historically significant gift, would you have approved?

If any other of our presidents had given the Queen of England an iPod containing videos of his speeches, would you have thought it a proud moment for America?

Is this what it's come to? Gift giving? Fine.

If any other of our presidents had bowed to the King of Saudi Arabia would you have approved?

http://www.google.com/search?q=bush+bows+to+saudi+king

If any other of our presidents had visited Austria and made reference to the nonexistent "Austrian language," would you have brushed it off as a minor slip?

http://www.dailytelegraph.com.au/news/bush-slips-up-at-apec-on-opec/story-e6frev8r-1111114365415

If any other of our presidents had filled his cabinet and circle of advisers with people who cannot seem to keep current in their income taxes, would you have approved?

http://thinkprogress.org/politics/2006/04/28/5088/rove-legal-trouble-more-extensive/ 

http://en.wikipedia.org/wiki/Harriet_Miers#Supreme_Court_nomination_and_withdrawal 

http://en.wikipedia.org/wiki/Michael_D._Brown#Resignation_from_FEMA

If any other of our presidents had stated that there were 57 states in the United States, wouldn't you have had second thoughts about his capabilities?

http://quietmumblings.blogspot.com/2006/08/bushisms-bush-and-geography.html

If any other of our presidents had flown all the way to Denmark to make a five minute speech about how the Olympics would benefit him walking out his front door in his home town, would you not have thought he was a self-important, conceited, egotistical jerk.

http://andyfinn.us/bush_league/bushisms20_bush_bravado.htm

If any other of our presidents had been so Spanish illiterate as to refer to "Cinco de Cuatro" in front of the Mexican ambassador when it was the 5th of May (Cinco de Mayo), and continued to flub it when he tried again, wouldn't you have winced in embarrassment?

http://www.independent.co.uk/news/world/europe/bush-takes-stab-at-speaking-spanish-with-mixed-results-673744.html 

http://www.youtube.com/watch?v=TcHlXNFpr-s

If any other of our presidents had burned 9,000 gallons of jet fuel to go plant a single tree on Earth Day, would you have concluded he's a hypocrite?

http://whateveritisimagainstit.blogspot.com/2006/04/george-w-bushs-earth-day.html

If any other of our presidents' administrations had okayed Air Force One flying low over millions of people followed by a jet fighter in downtown Manhattan causing widespread panic, would you have wondered whether they actually get what happened on 9-11?

http://www.huffingtonpost.com/2009/08/20/tom-ridge-i-was-pressured_n_264127.html

If any other of our presidents had failed to send relief aid to flood victims throughout the Midwest with more people killed or made homeless than in New Orleans, would you want it made into a major ongoing political issue with claims of racism and incompetence?

http://www.msnbc.msn.com/id/11627394/ns/us_news-katrina_the_long_road_back/t/video-shows-bush-got-explicit-katrina-warning/ 

http://www.msnbc.msn.com/id/11255379/ns/us_news-katrina_the_long_road_back/t/brown-blames-homeland-katrina-response/

If any other of our presidents had created the position of 32 Czars who report directly to him, bypassing the House and Senate on much of what is happening in America, would you have ever approved.

http://www.google.com/search?q=bush+bypasses+congress

If any other of our presidents had ordered the firing of the CEO of a major corporation, even though he had no constitutional authority to do so, would you have approved?

http://www.guardian.co.uk/business/2008/oct/14/us-banks-bailout-bush 

http://www.huffingtonpost.com/2008/12/19/bush-administrations-holi_n_152292.html

So, tell me again, what is it about Obama that makes him so brilliant and impressive?

Nothing. He's exactly the same as every other politician.

Is the state a criminal conspiracy?

Murray Rothbard famously called the state "a bandit gang writ large", or as it is more commonly rephrased, "a gang of thieves writ large". I have to admit that the first time I read this I was quite taken aback. I think I was first exposed to this idea early on after becoming a libertarian, and I wrote it off, in large part, to fiery rhetoric intended to get readers' attentions. Fortunately, it didn't scare me off, and as I read more and more, I came to understand the logic behind the assertion. As it usually goes for me, I have trouble seeing the forest for the trees right away.

This assertion -- government as a criminal gang -- often accompanies, or occurs during, a discussion of taxes. In fact, I had a discussion with someone just this past weekend during which I said that taxes were theft because I had never consented to them. Invariably, this leads (as it did in this case) into discussion about helping the poor, benefits of services paid for by tax revenue, and "civic duty" and what it means to be a "good citizen". The argument goes: taxes are fine and good as long as we put them to "good" use; to be against taxes is to be against the good that taxes provide. Don't get me wrong. I believe in helping the poor; I drive my car on roads; and I'm all for peaceful cooperation and being a productive member of society. I simply differ from the bulk of the population on how these ends should be achieved.

Since I'm likely in agreement with most about what can be achieved with the proper use of tax revenue (assuming the "proper" use could really be known), let's back up a bit and look at taxes themselves. A tax is simply a financial charge imposed by a state (or functionally equivalent "legal" entity), the payment of which is enforced under penalty of law. This is a somewhat euphemistic definition, though. A tax "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority" according to Black's Law Dictionary. With that definition in mind, we begin to see now the shape of the criminal gang metaphor. The state imposes a financial charge on its subjects and enforces the payment of said charge with force. In less civilized societies, failure to pay may be immediately met with the state's armed enforcers stopping by to collect the charges. In more civilized societies, one might first be given a trial in a state-run court, after which failure to pay will be met by the state's armed enforcers. The result is always the same, though. Taxes are ultimately, always collected by force be it through property confiscation or (the threat of) incarceration. (A discussion of the equality of the threat and actual use of force is omitted.)

When a criminal gang takes money by force, it is theft. When the state does it, it is taxation. The difference is curious, to say the least. Looking back at Black's definition of taxation, note that taxes are "exacted pursuant to legislative authority". So, despite all outward appearances, taking money from someone against their will is not always a crime; the legality of the act depends on who is doing the taking. The state is empowered by "legislative authority" while the "criminal" gang has no such authority. So, let's step further back and examine from where the state derives this authority.

Imagine, for a second, a person living alone on an island. For all intents and purposes, this person owns the island and everything on it, if for no other reason than there is no one else contending for ownership. Now let's add a second person into the mix. There are myriad ways for the two to decide how to divide up the land and coexist, but they all begin with the question of the proper ownership of each person's body. The simplest, most common sense solution to this question is that each person is the exclusive owner of his or her body. After all, it doesn't make sense for each person to own the other's body but not his or her own. Nor does it make any sense for the two to own both bodies jointly. These latter solutions would only produce conflict as the two would never be able to agree on how best to use their bodies. Indeed, the only viable solution is for each person to be the exclusive owner of his or her own body.

If we accept this premise, then it follows that the initiation of force/violence against another (without this other's consent) is never justified as it constitutes a violation of the person's ownership of his or her body and sole discretion as to how that body should be used. It further follows that if a person does not have the authority to initiate violence against another, he or she cannot contract this authority out to a third party, namely, the state. That is, one cannot grant power or authority to another that one does not have in the first place. Thus, we arrive at the conclusion that the initiation of force/violence by the state is never justified, and since all state actions are predicated on the use of force, we must further conclude that all state actions are without proper authority, at a minimum, with respect to those who do not consent to violence against them.

By now, it should be clear that there is little difference between the actions of a "criminal gang" and the state in terms of their authority to commit those actions. The only place where the two may differ is in the fact that, occasionally, the state may use its ill-gotten gains to help the public in the form of welfare, roads, etc. But the state is no Robin Hood. It steals from the rich, the middle class, and the poor, alike. Not only that, but it pays its bureaucrats first and then uses what's left to pay for these services. So, even when the state does good, the taxpayers are forced to overpay for these services since they can be provided by and found in the private sector -- often the state ends up contracting with private sector businesses -- with less bureaucracy and the added benefit of market competition to keep prices down. We must also note that money left, after paying bureaucrats, is further reduced by the state's spending on warfare and all that that entails. Taxpayers really aren't getting a good bang, no pun intended, for their buck.

All of this talk about how the state spends money, though, is simply a giant misdirection intended to confuse the issue. After all, we don't tolerate crime when the proceeds are used for ostensibly "good" purposes. Nor would we tolerate it if the criminal offered to give us a partial say -- a vote if you will -- in how he or she might use the proceeds. The criminal act must be addressed first and foremost, and this should be no different when it applies to the state. When there are different rules for the state and for the subject/citizen, what we have is most definitely not the rule of law.

The state is indeed criminal in its actions; the next step is to establish conspiracy. Strictly speaking, a conspiracy is "an agreement by two or more persons to commit a crime, fraud,or other wrongful act". Under this definition, a conviction of the state is all but certain. This isn't exactly what I have in mind, when I say conspiracy, however. Conspiracy, in reference to the state, implies to me some larger goal: not only to keep power but to further and further enhance and centralize it. It also implies that the state is always working toward this goal as an end unto itself. Now, I won't argue that this isn't what happens, in practice; however, I have a hard time believing that the state, at all levels, is always and everywhere conspiring toward this end for one simple reason. Again, Murray Rothbard:

[I]n a profound sense, no social system, whether anarchist or statist, can work at all unless most people are "good" in the sense that they are not all hell-bent upon assaulting and robbing their neighbors. If everyone were so disposed, no amount of protection, whether state or private, could succeed in staving off chaos.

If Mr. Rothbard is correct, which I believe him to be, that most people are "good", then we must conclude that either a significant number of people working for the state are "good" or that by some sort of social malfunction the state exclusively employs the "bad" people in society. There is certainly a good argument to be made for the latter possibility, but I'm a believer in the former.

If I am correct in that belief, then there only remains the question of why the state continues to exist. I believe there are two, related reasons: 1.) people do not understand the nature of the state, and 2.) people believe that they are not responsible for the actions of the state. I've addressed the former in this post; I'll try to address the latter in the next.

Pardon the dust, centralization in progress

A couple of weeks ago, California became the 8th state, joined by the District of Columbia, to pass a law that will give all of its electoral votes to the winner of the nationwide, popular vote. In order for this law to take effect, however, a number of states whose combined electoral votes total 270 (enough to win in the electoral college) must all pass similar legislation. If that happens, then the electoral college, while (likely) still in place, would be rendered moot.

Disturbingly, this change seems to have broad appeal and public support. According to Gallup surveys in 2001 and in 2004, about 60% of the population supports electing the president by popular vote. Editorial writings seem to hold an especially dim view of the federal government's presidential election process, stating that "[i]n a country that purports to be the world's greatest democracy, the Electoral College is an undemocratic embarrassment." Politico says that the bill signed by (California's) governor Jerry Brown is "designed to fix our broken presidential election system." And according to nationalpopularvote.com, 2,110 state legislators have endorsed the change.

I say disturbingly because this represents a serious misunderstanding of the nature of the design and history of the federal government. There is evidence for this in Ali Velshi's comments on Jon Stewart's show from earlier this week (starting at about 4:50, specifically 5:18) in which he complains that members of congress are representing their constituents instead of the "entire country":

In his comments, he explicitly states that he believes that there is some solution to our problem(s) that benefits everyone. For someone who reports on business and markets, this is a surprising position. It has a very "central planning" ring to it. That is, if we would all just trust the government, they'll do what's best for us because they know best. But a discussion of (the evils of) central planning is for another article. More to my current point, who should representatives represent if not their constituents -- the very people who elected them? Representatives are not sent to congress to do what's best for the country. They're sent to represent the interests of their constituents -- apparently much to the chagrin of Mr. Velshi -- and in doing so, the ideas that move forward are the ones shared by a majority of the people. (Don't get me wrong; I'm no fan of democracy or what has become of our republic.)

This misunderstanding extends beyond the punditocracy, though. I found this comment (repeated in a blog by an author who took issue with it for a different reason):

...no federal protections for us is just a wee bit troublesome too; we're either one country or fifty different ones. You can't have one State treating minorities as equals while another treats them like dirt.

The fact is that the United States are (or were intended to be) fifty different countries. Because these countries are small and share a common geography, they decided to form a federal government that would allow them to act together for mutual benefit in areas like defense and economics. This federal government was never intended to regulate individuals so much is its function was to govern the states. The states would in turn govern their individual populations. (I've written previously about the sovereignty of the states.)

If the federal government were kept small and limited to its original intent, then

dysfuctional state policies are constrained by the possibility of "voting with your feet." If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base.

Instead, as the federal government grows and the states weaken, this ability to vote with one's feet will be no more. If you think that the taxes, regulations, or public services of a particular state are bad, wait until they are uniform nationwide. Make no mistake, giving the presidential election to the winner of the popular vote has nothing to do with furthering democracy or preventing what happened to Al Gore in 2000 (something that has happened only 3 other times in the 200+ year history of the U.S. federal government). It's ultimate effect will be to push state power and sovereignty further and further into obscurity until all political power is fully centralized at the federal level.

* * *

I didn't have the space to delve more deeply into the evils of central planning or other problems with the proposal to elect the president by popular vote. Some of those are addressed in an editorial by the Las Vegas Review-Journal. In that editorial, I found a reference to a doctrine often (incorrectly, it would seem) attributed to Alexander Fraser Tytler. It reads:

A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.

It sounded very apropos and also reminded me of this quote, attributed to George Washington:

The last official act of any government is to loot the treasury.

* * *

Wikipedia also summarizes some of the theory behind indirect election of the president.

That triple-A credit rating

Despite a debt deal, the US federal government still faces a downgrade of its credit rating. In my opinion, rating the creditworthiness of a government is all political theater. However, during the course of discussion, I've noticed a curious argument being made with regard to the possible downgrade:

Behind all too many of market moves in government debt of late has been a report from one of the major credit ratings agencies. S&P is the biggest and arguably the most influential, fast followed by Moody's Investor Service and then their smaller rival, Fitch Ratings. In national capitals, they are alternately vilified by politicians or held out as just arbiters for denouncing government profligacy. 

Yet there is an overwhelming irony in their new-found prominence. These are the same firms that many blame as prime instigators of the 2007-2008 credit crisis for freely giving out top ratings to ultimately worthless structured mortgage products, allowing the credit bubble to form. Now they sit in judgment of the countries that had to ruin their public balance sheets to prevent financial collapse by saving the banks shattered by those bad instruments once blessed by the agencies. 

"The ratings agencies failed the world economy in spades in the past," said Lord Peter Levene, chairman of the Lloyd's of London insurance market and a former senior adviser to the British finance ministry. 

"Their track record has not exactly been stellar."

The argument seems to be that because the ratings agencies all "missed" the financial collapse in rating junk financial instruments as AAA, then their credibility in this matter is nil. I don't follow this line of reasoning for a couple of reasons:

1. The main issue that people seem to have with the credit rating agencies is that they waited too long to warn the investing public about the looming financial catastrophe that struck in 2007-2008 and issue downgrades. Shouldn't those people now be applauding these same agencies for trying to correct their failures by getting out ahead of possible new problems?
   
2. If credit rating agencies tend to overrate financial instruments, an assumption that seems to underlie the argument, then shouldn't people take it very seriously when an agency actually does issue a downgrade?

You can't have it both ways. You can't simultaneously decry the agencies for missing the financial collapse in 2007-2008 and then point at that incompetence as a criticism for downgrading a financial instrument that everyone agrees is in trouble.

I can haz liberty now?

Late last week the New York state senate passed a bill allowing same-sex marriages in the state. A few years ago, I would have seen this as a great leap forward. When California had its big argument about Proposition 8 -- which sought to constitutionally declare that only a marriage between a man and a woman would be recognized by the state -- I argued with anyone and everyone that its passage was wrong because, at its core, it denied to one group of people rights that were granted to another group. I still believe that to be true, today, but what happened in New York last week caused me to see things a little bit differently.

Coincidentally, a blog post at mises.org, today, links to an article that argues that libertarians should support New York's action:

[W]hile agreeing that the long-term goal is separation of marriage and State [...] given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law.

The author of the original post sees it differently:

[O]ne needs to separate rights from privileges and [...] increasing the relative size of a privileged group does not constitute a step in any valuable direction (at least from a libertarian point of view). [...] Equality under the numerous government laws is not only impossible (since pretty much all of them constitute privilege), but may be directly counter-acting the cause of liberty.

There was a time when I subscribed to the former view. Somewhere along the line, I came to embrace the latter. Let me explain.

Rights vs. Privileges

Up until I embraced this latter view, the difference between a right and a privilege never entered my mind. In reality, my conception was that a right was something that one had or acquired under the law. My definition of "right" was closer to that of "privilege". Since the two are going to be treated as separate from here on, it is worth defining them:

right: a just claim or title, whether legal, prescriptive, or moral
privilege: a right, immunity, or benefit enjoyed only by a person beyond the advantages of most

A right exists independent of any governing body. One has a just claim, for example, to his/her own body. After all, it doesn't make sense for anyone else to own it. Therefore, as the owner, one has a right to do with his/her body as he/she wishes. A privilege, on the other hand is something that is granted to one person or group. Voting is an example of this. While women and non-whites got the privilege long ago, it is still denied to felons in a number of states. This brings up an important distinction between rights and privileges. Privileges are granted and, therefore, can be (legitimately) taken away; rights are preexisting and cannot be (again, legitimately) taken.

In addition, it is worth distinguishing between positive and negative rights. At its simplest, "a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder." Libertarianism says that no person has the right to use or threaten another with force. This is, in fact, a negative right. Every person has the right to be free from the aggressive violence of another. In fact, civil rights such as freedom of speech and association and the right to bear arms all arise from this notion. None of these acts, in and of themselves, are aggressive in nature.

Under the idea of negative rights, two people have the "right" to voluntarily associate with each other in whatever manner they wish. Absent a government (and/or a church), a "marriage" is simply a compact or contract between two people and has no meaning beyond the participants in the contract. That is, I may welcome you into my house, but your marriage does not obligate me to also welcome your spouse. On the other hand, when someone says that he/she has a "right to marry" under the (government) law, he/she is asserting a "positive right". What that person is really saying is that he/she wishes -- is entitled by right -- to be afforded the privileges conferred upon other married people.

The problem with all of this, of course, is that these privileges eventually obligate others to act in a certain way, under penalty of government force, with respect to the marriage contract and its participants even though these "others" have nothing to do with the contract. The solution is equally obvious: leave government out of marriage completely.

But what of the first author's view that the goal should be equality under the law? Shouldn't gays who love each other and, if not for existing law, would marry be granted the privileges that accompany that marriage? Let's look quickly at the "spousal privilege" as it relates to testifying in court for an answer. The spousal privilege refers to the idea that a person cannot be compelled (via government force) to testify against his/her spouse at trial. But what of people who don't wish to marry? What of close friends? This "privilege" does not extend to them. Therefore, in this context, while gay marriage brings gays on equal footing with straights -- and doctors of various types, I might add -- it leaves a very sizable portion of the population out in the proverbial cold, still subject to being compelled to testify. Other benefits not granted to unmarried people include tax breaks, visitation rights, special immigration status, inheritance, etc. There is still no equality under the law, yet nobody that I am aware of is questioning this inequity.

Liberty as a privilege

Now that I've, I hope, made the right vs. privilege distinction clear, I think it is safe to say that, by and large, the rest of the population does not readily acknowledge this distinction. Instead, most of the population views the right to associate (via marriage, gay or otherwise) as indistinguishable from the privileges that come with the state recognition of that association. As such, arguably, this entire situation could be viewed as a group of people begging an even smaller group of people -- politicians -- to please, please, please grant them their liberty when it was the very institution for whom those politicians work that took it away in the first place.

Maybe marriage is a bad example, though. By that I mean, we can't rightly infer the intentions of all people who demand "marriage equality". Having muddied the waters by giving state sanction and privilege to marriage, the government has inextricably linked liberty/rights to privilege such that the population no longer recognizes the difference. And now, we arrive at the real reason I am not head over heels about the recent happenings in New York. The government has transformed liberty and natural rights into privileges.

Marriage, admittedly, is possibly not the best example. So, let's turn our attention to the right to keep and bear arms. In California, among other places, the right to carry a gun in public has been all but completely denied. Open carry of a loaded gun has long been illegal. Open carry of an unloaded gun has been legal by virtue of the legislature not realizing that it had not forbidden it, but it is quickly working to rectify that. Concealed carry is only an option if one lives in a rural area or is buddy, buddy with the sheriff of his/her county. Carrying a gun in an urban area of California is, no doubt, a privilege reserved to government officials and those that donate to them.

Let's go a step further. Earlier, I mentioned that each person is the proper owner of his/her own body (if for no other reason than because no other owner makes any sense) and can do whatever he or she wishes with it so long as the action does not violate another's ownership of his or her body. If this is true -- and it would be impossible in my mind to argue differently -- then one has the right to put whatever one wants into his or her own body. This includes not only so called illicit drugs but prescriptions as well. Why should one have to obtain permission from a doctor who has in turn been granted permission from the state to get a prescription?

Maybe drugs aren't your thing. Perhaps you like milk? I hope it's not raw milk. The FDA doesn't like raw milk and has even gone so far as to say that individuals do not have the right to eat what they wish. The FDA is quickly moving in the same direction against mothers who share breast milk.

All of these liberties have been transformed into government-granted privileges. As if that wasn't bad enough, the system is self perpetuating. As a monopoly provider of law and enforcement, the government has been put in the position of having the power to deny a right by law and enforce that denial through its police power, thus rendering it a privilege. Citizens are left with two options, neither of which is appealing: 1) ignore the law and risk ending up in jail, or 2) beg the government to recognize/grant their liberty.

The latter option seems to be the government's approved method of attempting to maintain/regain one's liberty, and there is a very simple reason for that. To utilize this method is to implicitly acknowledge that liberty is a government-granted privilege.

Texas folds 'em

Last month, during the big dust-up about the anti-TSA bill in Texas that would have made TSA groping illegal, I wrote up a quick piece about the bill. In that post, I said this:

I didn't think the bill would ever become law, but I didn't think it would be because the Texas legislature would roll over at the first hint of resistance from the federal government.

Yesterday, it died for reasons that I did expect. Stop Austin Scanners, again, has the story:

This morning, HB 41/SB 29 died by parliamentary procedure, by failing to get sufficient votes to suspend the Texas Constitution to allow 2nd and 3rd readings on the same day.

[...] The Texas Constitution prohibits 2nd and 3rd readings on the same day unless 4/5th of the 150 member body consents to suspend the Constitution to pass the bill.

This would  not have happened if Governor Rick Perry had not waited to call the bill before the 11th hour, and House Speaker Joe Straus (both Republicans) not violated House rules by not bringing HB 41 for its first vote last Friday, June 24th after a quorum had been established and no other business but HB 41 was scheduled.  Speaker Straus later called HB 41 nothing more than a “publicity stunt” and the refused to acknowledge the Senate messenger yesterday.

Had Straus allowed the messenger deliver SB 29 at the time it was presented, the bill’s 2nd reading could have been completed yesterday, leaving open today for a constitutionally proper 3rd reading.  Instead, in a politically vulgar move, the Speaker manipulated the proceedings to force Representative Simpson to subvert the constitution he most fervently seeks to uphold by calling for its suspension to achieve final passage of SB 29.

Liberty died, not by force, but quietly choked out by political chicanery. Of the people, by the people, and for the people, indeed.

Texas tries again

Says Kathryn Muratore:

This is very good news, indeed. Texas State Rep David Simpson introduced two bills to the legislative session this year[.] In a wild turn of events, the legislative session was extended by Gov Rick Perry for a month to finish work on other legislation, and it was left to his sole discretion to decide what to add to the agenda. With a little over a week left in the extended session — and after an about-face by Lt Gov David Dewhurst, a nationwide campaign, and recent publicity of state legislators being violated by the TSA — the [anti-groping] bill is back on the agenda.

From Star-Telegram article:

Some state officials and lawmakers have offered anecdotes to illustrate what they say is inappropriate or invasive behavior by TSA inspectors.

State Rep. Barbara Nash, R-Arlington, said she has thought several times that TSA inspectors went too far in security patdowns. Recently, she said, a female inspector felt "all the way up" the outside of her dress, in back and front.

"It made me angry. ... it was not something I would want to happen to someone else," Nash said.

At the other end of the political spectrum, state Rep. Lon Burnam, D-Fort Worth, one of the most liberal members of the House, was also critical of TSA procedures.

"I definitely think the way TSA is implementing their responsibilities is invasive of people's privacy," he said.

It would seem the bill's appeal crosses political lines, though, it would seem politics will still play a role as the article goes on to say:

Burnam supported the legislation in the regular session but said he was uncertain whether he will remain a supporter, saying he was "put off" by Perry's decision to include it in the special session.

"This whole special session is almost disgusting," Burnam said. "It's all about his candidacy for the presidency. It's not about what's good for Texas."

Not what's good for Texas? "Put off" by Perry's decision? Hey Burnam, how about you consider "taking one for the team", here. Instead of trying to screw Perry by voting against this legislation (which you actually support), how about you try to avoid screwing the people that you supposedly serve by protecting their liberty?

The legislation has until next Wednesday (June 29) to pass. Follow the fight here.

Texas capitulates

Lots of people, at various times recently, have pointed me at Texas HB 1937. This bill would have made the TSA's groping procedures illegal, at least in Texas. I didn't think the bill would ever become law, but I didn't think it would be because the Texas legislature would roll over at the first hint of resistance from the federal government.

"If HR [sic] 1937 were enacted, the federal government would likely seek an emergency stay of the statute," the letter read, on U.S. Department of Justice, Western District of Texas, stationery. "Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

stopaustinscanners.org sees the situation this way:

Let’s be absolutely clear here: the Federal Government just threatened to make Texas a no-fly zone if they can’t sexually assault us.

Nevertheless, the legislature folded:

Senate sponsor Dan Patrick (R-Houston) pulled down HB 1937. But he didn't pull it until after some firey rhetoric about the principles of the bill, as well as allegations that TSA representatives were "lobbying" the Texas Senate today. "I will pull HB 1937 down, but I will stand for Liberty in the state of Texas," Patrick said.

Classic political move: "I was for liberty before I was against it, but I'm still for it." Somebody should explain to Senator Patrick that you can't kill this bill and simultaneously claim to stand for liberty. The two are mutually exclusive. Jackass.

The legitimacy of voting

With Ron Paul running for president again, much is being made about the legitimacy of voting. In fact, my wife asked me the other day if I would vote for Ron Paul either in the primary or in the general election, should he succeed in getting the Republican nomination. I honestly wasn't sure how to answer. I oppose voting on the grounds that 1.) participation in the system may be (mis)construed as consent to or legitimization of the system, and 2.) voting is the attempt to impose one's own will on another.

Tom Woods addressed the first objection in a blog post the other day:

If you were stuck in a prison camp, and the guards let you vote on whether you were to have gruel or prime rib for dinner, would you be “consenting to the system” to vote for prime rib, or would you simply be doing the best you could under the circumstances to improve your material condition?

His question implies that the two options -- consenting to the system or doing the best you could to improve your material condition -- are mutually exclusive. They are not. Can you vote for the prime rib (or the gruel, for that matter) and still oppose the system? Absolutely. Will your captors acknowledge this distinction? Doubtful.

The problem with these types of thought experiments is that they are directed at the wrong audience. The title of Mr. Woods' blog post is "Why Even an Anarchist Should Vote for Ron Paul". The content is clearly directed at anarchists of various stripes who have made a conscious decision not to vote for whatever reason. They, typically, understand the nuances of voting but not consenting. That is not to say that statists don't also understand that nuance. However, whether they understand it or not, they will not acknowledge it.

When one is born into this world, he or she cannot be said to have consented to any government. In fact, even adhering to the laws of any particular government cannot be said to constitute consent. A person breaking the law often enough would quickly find himself in a situation akin to the prison camp described by Mr. Woods. Therefore, the only position we can reasonably ascribe to such a person is a desire to avoid the government force threatened when the law is broken. The same applies to paying taxes. Paying taxes also cannot be said to serve as consent because, again, government force is threatened if taxes are not paid. While adhering to the laws and paying taxes are sometimes used as a measure of consent, even the most ardent government supporter cannot claim that these are completely free choices made by an individual.

How then can we measure whether a person consents to his government? It can only be by an affirmative participation with government in which a person can freely choose whether or not to participate. This participation must also not be predicated on some prior interaction with the government. An example of this latter condition is the acceptance of a government benefit by a taxpayer. The taxes were appropriated (for the sake of argument) without the consent of the person, and the courts refuse to hear any case in which taxes are purported to be theft. Therefore, the only recourse for the taxpayer to try to recoup his lost property is by accepting some kind of government benefit, be it through the use of public roads or schools or accepting payments from programs like Social Security. (This ultimately leads to the problem described by libertarian class analysis, namely that there exists net tax payers and net tax beneficiaries, but that is another topic entirely.)

What we are left with to determine consent is voting. (Technically, voluntary military service could also serve in this role, but this is applicable to a very low percentage of the population and therefore not suitable for this discussion.) Again, it is possible to vote and not consent; it is even possible to make the argument that voting for lower taxes (or against higher ones) is a form of action predicated on a prior government action: theft via taxation. However, voting is the "most free" interaction with government allowed, and as described previously, those in government and those who support it will construe voting as consent. Sure, one can disagree with the outcome, but one still consented to it. In this way, voting for a candidate who most favors libertarian ideals -- who outright wants to abolish government -- could be the most damning act of all (in a statist's eyes) because one will vote most earnestly and without reservation to give his candidate the power of government, even if the goal is ultimately to turn that power against itself.

To illustrate my second objection to voting, let me alter Mr. Woods' example slightly:

Let's assume again that you are stuck in a prison camp, this time with two others. The prison guards again offer a choice of gruel or prime rib. One of the others becomes violently ill when eating red meat, and one is tired of eating gruel to the point of violence.

Do you vote for the prime rib, forcing the one who will become ill to go without? Do you vote for the gruel risking the possibility that the other one will become violent and hurt either you or the allergic one? Do you work out some kind of system in which you vote for prime rib sometimes and gruel other times leaving the allergic one without food on occasion?

It's very easy to look at a situation like that proposed by Tom Woods and assume that there is nothing wrong with voting because the situations presented are such that no one would oppose them. Roderick Long, in an article I highly recommend, makes the same leap by analogizing that it would be right for Lana Lang to take control of Lex Luthor's Juggernaut Beast and prevent the destruction of Smallville -- you really have to read the article. (Long eventually shoots his own argument in the foot by saying that there is nothing wrong with a libertarian wielding government power so long as he doesn't use it for "evil". Why isn't the same true of Lex Luthor? Lex has not aggressed against anyone merely by flying around in his Juggernaut Beast, at least not any more so than the mere existence of government constitutes aggression.) Real life is never so cut and dried. The choices required in voting are more often like the example of the prison camp that I described.

In summary, voting is not, in and of itself, an immoral or aggressive act. Furthermore, it is possible to vote for (or against) something and still object to the system within which the vote takes place. However, no matter how one rationalizes his act of voting or not voting, he must be aware of how that action will be perceived (particularly by those with whom he disagrees) and if/how that action will affect others.

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.