25 May 2011

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.

24 May 2011

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.

18 May 2011

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.

17 May 2011

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.

04 May 2011

When does it end

Right now, I've got 18 tabs open on my Internet browser (I use Firefox in case you're interested). This is a real rarity for me. I never have more than 3, possibly 4, open for any length of time. One is the window in which I'm typing this entry, one is iGoogle, one is Facebook, one is a news story about Timothy Geithner "extending" the deadline by which the U.S. Congress "must" raise the debt ceiling, and the other 13 are news stories devoted to Osama bin Laden. I first found out about bin Laden's death when my wife received a text message from her sister who had apparently been watching the news. I received the same text message a few minutes later. (Good work AT&T, delivering text messages to two phones 5 feet away from each other 5 minutes apart.) I have to admit that my first reaction was: so what?

It was immediately obvious to me that no troops would be coming home. No civil liberties would be restored. We would all continue to be forced to take our shoes off and be molested at the airport. I even commented sarcastically to a friend of mine: "Awesome, so the war on terror is over and we all get our liberties back?" In reality it would seem that just the opposite has turned out to be true. Secretary of State Clinton was quick to "reassure" the public that "battle to stop al-Qaeda and its syndicate of terror will not end with the death of Osama bin Laden." Moreover, major government officials and every major news source and pundit has told us that we are in even more danger now because of the possibility of retaliatory attacks. The NBA took the extra step of mandating metal detectors at playoff games. So, killing bin Laden made us less safe? If that's the case, then logic would dictate that he shouldn't have been killed.

After confirming my sister-in-law's text message, we changed the channel back to our "regularly scheduled programming". Before going to bed, we turned again to the news to see what, if any, additional information might be available. We were treated to clip after clip of video showing people dancing in the streets in places like Times Square and the White House. I was disgusted to see the very same people who denounced people who danced in the streets while burning American flags after the death of one of our soldiers acting in the exact same manner. The news feed on my Facebook account exploded that evening with people cheering on our government and our military for summarily executing another human being.

In dying, Osama bin Laden showed us that we're really not so different from the very people that we deride as war-mongers and who we believe are incapable of a peaceful existence.
He taught this country the consequences of operating an open, free society. Literally, he showed Americans the price of their liberty, how many of their principles they'd be willing to cast aside, and how quickly they would do it.

In other words, bin Laden showed American exceptionalists how unexceptionally they behave when faced with horrors most older nations have endured.
The writer is referring to our weak-kneed acquiescence to government intrusion on liberty here in the U.S., our paranoia at the thought that a terrorist is hiding around every corner, and our rampant xenophobia. His point is equally applicable to our reaction to the news of bin Laden's death, though. The overwhelming reaction, that of proclaiming America's strength and celebrating our actions in the streets, was no different than that of the people you see in other parts of the world dancing upon hearing the news of the killing of American soldiers.

I woke up the next morning to hear people on the radio explaining that it's different when American's celebrate. You see, Osama bin Laden killed innocent civilians on September 11th, 2001. Therefore he is evil, and not only was his killing justified but morally right. On the contrary, our soldiers are overseas doing good work, and when they are killed, that is wrong. Never mind that the "rebels" in Afghanistan see us as an invading and occupying force; never mind that America regularly kills civilians as part of its eternal war on terror; never mind that America locks up and tortures "militants", denying them any sort of access to a justice system to sort out their guilt or innocence; never mind that America has "peacefully" killed hundreds of thousands, if not millions, via sanctions of various kinds. Everyone wants to point to 9/11 as if bin Laden started this fight and America's hands are clean, but it's been going on for much, much longer. All of those American actions I just cited have been and continue to be used as justifications for Al Qaeda's actions. And regardless of how it started, it is only escalating.

But, there are likely those that remain unconvinced that America has any responsibility for the fight in which it now finds itself, but, nevertheless, it must see it through. That is, they believe that "we didn't start the fight, but we're going to finish it." So then, when does it end? If one truly believes that we are going to finish it, then the answer would be "when we've killed or captured all of the terrorists". As I pointed out, though, capturing terrorists and refusing to bring them to justice -- for those that have forgotten, justice means a trial in a court of law, not vigilante killings or indefinite detention -- or killing them, especially when unarmed, tends to drive more people into the fight. This so-called solution actually perpetuates the problem. Yet, it seems to be the solution America is intent on carrying out.

Attorney General Eric Holder sat in front of the U.S. Senate and had this to say about the whole affair:
The operation in which Osama bin Laden was killed was lawful. He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self defense.
Ah, national defense. Of course. I wish Mr. Holder would have gone on to explain exactly what our military was defending when it shot and killed an unarmed man. Apparently, bin Laden resisted, but I find it hard to believe that a team of highly trained and very well armed men were unable to subdue a frail, old man in regular need of dialysis, without killing him. Jeffrey Toobin explains that the U.S. had to kill bin Laden because messy details like whether bin Laden would be given a civilian or military trial, who would defend him, and where his trial would be held are just too difficult for us to sort out. That's right; when the government has a "difficult" problem on it's hands, killing people is the only way out. I'm not sure why that same principle didn't apply to Saddam Hussein or Khalid Sheik Mohammed.

But let me return to the idea of national defense brought up by Mr. Holder. Exactly what are we defending with our actions overseas? The knee-jerk answer is always "freedom". It's hard for me to believe that anyone can still respond this way with a straight face; I'm chuckling to myself a bit just writing this. Even if it were true, though, what will be left should we ever finish fighting this war on terror? We've abandoned the idea of innocent until proven guilty. We've abandoned the idea that people are entitled to a trial before being assessed any sort of punishment (including death). We've abandoned the idea that our government is subject to the same laws as the people. If the war on terror, by some miracle, ever does come to an end, we will find that we were busy throwing away our freedom, all the while claiming that our military was overseas fighting for it.

The truth is that we're not fighting for freedom. We're fighting for empire. We're fighting to bring the rest of the world under our control. Osama bin Laden understood this all too well. "We, alongside the mujaheddin, bled Russia for 10 years, until it went bankrupt," he explained.
The campaign taught bin Laden a lot. For one thing, superpowers fall because their economies crumble, not because they’re beaten on the battlefield. For another, superpowers are so allergic to losing that they’ll bankrupt themselves trying to conquer a mass of rocks and sand. This was bin Laden’s plan for the United States, too.
And that returns me to my original question: when does it end? I can't say for sure, but my money's on "soon". As for the "how" question, I'm not so sure that we're not about to follow in the Soviet Union's footsteps and those of every other major empire throughout history. Those who fail to learn from history are doomed to repeat it.