Distinction without difference

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

Two thoughts immediately come to mind:

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


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

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.

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.

Gresham's law, extended by force

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

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

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

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

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

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

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

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

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

***

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

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

and

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

***

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

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

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

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

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

***

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

"Non-essential" government

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

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

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

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

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

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

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

Why democracy? (continued)

After my last post, I received a few replies decrying what some saw as my advocating of gay rights. Looking back on that post, it doesn't seem to me an unreasonable inference on the reader's part to make that leap. I admit that the misunderstanding is probably, at least partially, my own fault for using the word "rights". These responses missed the point of the post, though. The point was not to advocate for legalization of gay marriage or marijuana use. Rather, it was to point out that democracy is not the cure-all that people believe it to be. Democracy will always be a tool by which a majority will oppress a minority and ultimately the individual. The particular issue(s) in which this phenomenon occurs is not relevant. That said, let me expand on the issue of gay rights, marriage in particular, further to answer the questions I received.

First, there seems to be a lot of hoopla surrounding the word "marriage". Some believe that a marriage can only be between a man and a woman. Some believe that it is the union of a man and a woman, blessed by God (these people, by and large, seem to have no problem, though, with a state performed marriage absent any church). Others believe that it can be the union between two people of the same sex inside or outside of a church. Still others believe that it is not limited to two people at all. I have no particular affinity for the word "marriage", and I use it fairly loosely in the following paragraphs. If the use of the word marriage in this post offends you in this context, please feel free to replace it with "civil union" or whatever other phrase best suits your ideology.

Marriage is, or should be, from the state's perspective, nothing more than a contract, a property arrangement. Obviously, marriage means much more to the actual participants, but the state has no business beyond the property arrangement. For example, the state doesn't penalize one spouse for failing to sufficiently love the other spouse(s). However, the state does have laws for how property transfers occur between spouses when they die or dissolve their marriage, pre-nuptial or other agreements, notwithstanding. Not only that, but marriage also confers special privileges upon spouses like receiving benefits of various kinds, tax deductions, making medical decisions on behalf of an injured spouse, and protection from being compelled to testify against a spouse in court.

In the U.S., these privileges are only applicable to male/female unions under the Defense of Marriage Act, passed in 1996. Under this act, our democracy has, for all intents and purposes, discriminated against a significant portion of the population by denying them the ability to form a marriage contract between themselves and their chosen partners. To my earlier point, the majority has oppressed the minority by denying a specific group of people the ability to voluntarily engage in a specific type of contract and receive the benefits afforded by that contract.

It seems obvious, then, that the solution is to legalize gay marriage. However, doing so would only grant more power to and further legitimize the state. To argue for legalization would legitimize the act of having made it illegal in the first place. It would give credence to the idea that one person has the right to impose his views on another via the coercion of law; it would legitimize the idea that that the government (or the majority via the government) has the authority to grant or deny permission for private parties to voluntarily enter into a contract. So we are left with a Sophie's Choice of sorts. Either, let the majority continue to oppress the minority or grant ever more power to the state. Let me suggest a third alternative: the state should cease involvement in all marriage and stop granting benefits on the basis thereof. People should be free to marry whomever they choose without having to ask permission from anyone or pay for the privilege, and the state, to the extent that it exists, should simply honor the contracts.

Why democracy?

Over the last month or so, people have been throwing off, or trying to throw off, the shackles of their oppressive governments. It started in Tunsia, spread to Egypt, then Yemen, Bahrain, and now Libya. In every instance, though, the protestors have been calling for democracy. I suppose that's understandable; the grass on democracy's side of the fence probably looks and probably is a lot greener than that on the dictatorial side. I'm probably underselling democracy with that statement. After all, democracy is often held out as the gold standard for (good) government. Winston Churchill endorsed it, saying, "democracy is the worst form of government except all the others". Despite the actual wording, when reading or hearing Churchill's statement, people often "hear" that democracy is the best form of government. In reality, we can rightly infer from the statement that all forms of government are terrible. In Churchill's opinion, democracy is just the least terrible.

Democracy is often referred to as "tyranny of the majority" and Lysander Spooner explained, very eloquently, why:

[O]ther men practise this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two.

Democracy is a very seductive mistress because it promises the people control of the government. It gives the illusion of self-governance and individual rights. It implies that no injustice can be done so long as the "will of the people" is done. It provides nothing of the sort, though. As explained, when the people vote, a majority may and does impose its will upon the minority. "Will of the people" is rightly replaced with "will of the majority". This can be seen most prominently in the struggle in the U.S. for gay rights, and more specifically, gay marriage. In California, in 2008, 52% of the population denied gay people the right to marry. Proposition 19 last year, also in California, is another example where barely more than half of the population (53.5%) used their majority position to deny the use of marijuana -- the actual use of which affects no one other than the user -- to the rest.

There is also the problem that democracy doesn't scale. The founders knew this when they set up the U.S. House of Representatives. That is, it is not practical to hold a vote among the entire population for every matter to come before the U.S. federal government, so instead the population elects representatives to act in their stead. These representatives then practice democracy amongst themselves. This is even worse, though. Each representative currently represents just under 700,000 people. How can one person adequately represent the diverse views of almost three quarters of a million people?

Choosing between two candidates is analogous [to] going to Walmart and being presented with two shopping carts already filled with items. Everyone will leave the store with the same cart of goods. Each cart contains products that a person may want and products that one wouldn't choose to have, but the voter is not able to take anything out of either cart.

Not only that, but:

[E]ven though the voters are promised a particular set of goods in the shopping cart that won the election, that doesn't mean that the voters will receive that set of goods. The candidate could promise to deliver a specific set of policies, but after the election, the office holder is free to deliver a different set of policies to the voters, either because the candidate changed his position on some issues or because he was being deceitful during the campaign in order to gain political support.

The same can be said at other levels of government, even down to the city level, where a handful of elected officials make decisions on behalf of hundreds of thousands, if not millions of people. So, the question should not be "why democracy", but "why government". At the federal level, we have things like  TSA body scanners, highway checkpoints, the PATRIOT Act, warrantless wiretaps, extra-judicial assassinations, and indefinite detentions. At the state level, we have the aforementioned denial of gay rights and marijuana use, prohibitive gun laws, and smoking bans. At the city level, we've got Happy Meal "bans" and watering limits and landscaping restrictions. And at all levels, we have taxes and police. You may be inclined to agree with some or all of these items, but that's not the point. The point is that some person or group who you may or may not have voted for or even heard of is, in one way or another controlling you. So, perhaps the question should really be, "why do people choose to be ruled".

Whether they know it or not, most people are Hobbesians, by which I mean that they believe or are fearful that the natural state of humanity is "war of all against all". They may very well be right, and in order to protect themselves from this "war", people institute governments and cede the use of force to said government, presumably to prevent the use of force amongst the people themselves. Locke argued that people do not even have the ability to cede this power in the first place, but nevertheless, ceding this power to a government presents a clear contradiction. If all people by their very nature would war with all others, why would anyone cede to anyone else the legal use of violence? James Madison touched on this idea in The Federalist, No. 51 when he said that if men were angels, there would be no need for government. He argued further that because men are not angels, pitting them against each other within government was the best that we could do. Men, competing with each other, from different branches of government, would restrain each other.

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

The people of the revolting Middle Eastern and African nations now have a rare opportunity to truly be free. I fear, though, that like many before them, they will make the mistake of putting in place a government that will ultimately betray them and once again oppress them. If they are lucky, it will be to a lesser degree.

Democrats flee Wisconsin

The Democrats have fled the Wisconsin capital to avoid an upcoming vote to deny collective bargaining rights to government workers. I think the Democrats are right but probably for a different reason. The first amendment (supposedly) protects free speech and the right of the people to peaceably assemble. A union is, at its core, a group of people exercising those rights. The fourteenth amendment applies the first to the states -- really, the Supreme Court applied the first to the states, but that's another discussion -- so in my mind, an attempt by the government to bar unions is unconstitutional (keep in mind that I'm no lawyer).

In the particular case of Wisconsin, and really governments in general right now, government incomes are falling (unemployment) and expenses are rising (healthcare, welfare, etc.). Like a business, they need to cut costs, raise revenues, or declare bankruptcy. The latter two are politically untenable, which leaves cost cutting. Hence, the governor wants to cut workers' salaries and benefits. The union is simply trying to prevent that. I'll let you draw your own conclusion about whether or not the union is in the right.

I'm willing to give the Democrats the benefit of the doubt and assume that part of their reasoning in leaving the state was defending constitutionally protected freedoms, as I described above, but I believe much of it to be predicated on the pro-worker position(s) of the Democratic party and the idea that the government workers in question deserve "fair" compensation. The idea of "fair" compensation is murky, at best, when dealing with governments, though. There's a tendency to compare government salaries to private sector salaries and assume that they should be similar (at least) in the cases where the job functions are the same. If government salaries are too low as compared to those in the private sector, government can raise taxes to raise its workers' salaries. This would likely have a negative effect on private sector workers, though, as they would see less "take-home" pay, and employers may even begin to pay less as well. As private sector salaries decreased, government could lower its workers' salaries and, in turn, taxes. In theory, this would reach equilibrium at some point, and we could all claim that "the market works". (Also, keep in mind that I'm no economist.)

In reality, this would probably never actually happen because the union would fight tooth and nail to prevent the government from lowering its workers' salaries, much like what is happening now. The other problem is that it's not the market at work. In a truly free market, people would determine the workers' salaries indirectly by voluntarily paying for the product produced by the workers. The government isn't subject to market forces, though, because its revenues come in the form of taxes. People, in general, don't pay their taxes because they want a product that the government produces; they pay them because the alternative is prison.

I don't mean to sound anti-union; I'm not against them, per se. Like anything else, they can be good, and they can be bad. For interested readers, Henry Hazlitt gives a much fuller and better treatment of the subject.

How did (tea party) patriots act?

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

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

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

[...]

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

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

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

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

How will (tea party) patriots act?

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

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

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

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

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

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

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

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

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

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

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

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

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

TSA in the news

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

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

***

The TSA is "upgrading" its body scanners:

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

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

[...]

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

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

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

The three branches of government

This was too good to pass up.

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

Non-infringement vs. Protection

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

The district court ruled for the state:

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

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

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

Government wants bigger government

As I thought about what I wrote yesterday, something hit me that was completely lost on me when I wrote it:

Congressman Robert Brady (D-PA) is proposing that the ban against threatening the president be extended to all federal officials (presumably congressmen, judges, etc.) Congressman Pete King (R-NY) is proposing that guns not be allowed within 1000 feet of "powerful federal officials".

I included party affiliations behind each congressman's name to show that the knee-jerk reaction wasn't limited to either party. What didn't hit me at the time was that the limitation on free speech was proposed by a Democrat, and greater gun control was proposed by a Republican. Did these gentlemen forget which party they are members of? I doubt it. Rather, in a rush to take advantage of the crisis and the public's visceral reaction to it, they simply revealed their true, statist colors.

"Tone down the rhetoric"

This is a topic that I really didn't want to weigh in on, but I keep reading about it, and I'm having a hard time not responding to others who have written on it. First, some background: in case you've been living under a rock for the past few days, you've likely heard about Jared Loughner. In response to his shooting spree, much has been written about Mr. Loughner's politics, the politics that may have lead to his actions, and the politics to come.

As to Mr. Loughner's politics, I don't care. In the immediate aftermath of his actions, much was made of his anti-government stance. For many this seemed to place him firmly on the radical right side of the political spectrum. Shortly thereafter, an old friend (acquaintance?) of Mr. Loughner's began tweeting that Mr. Loughner was "quite liberal". And neither side can distance itself from him fast enough. Let's keep our eye on the ball here, though. The shooter is now in custody; he ought to be given a trial and, if convicted, made to answer for his crime(s). The end.

But that's not the end, and we can't keep our eye on the ball. Instead, we're being told to "tone down the rhetoric". Clarence Drupnik, the sheriff of Pima county, where the shooting occurred, has been making news because of comments he made after the shooting, mainly this one:

When you look at unbalanced people, how they respond to the vitriol that comes out of certain mouths about tearing down the government. The anger, the hatred, the bigotry that goes on in this country is getting to be outrageous.

I've seen it pointed out that there is nothing inherently political about this statement, and in a vacuum, I would agree. Unfortunately, we don't live in a vacuum, so let's call a spade, a spade. Mr. Drupnik is referring to those on the political right and those who oppose (big) government. (Note that those are two distinctly separate groups.) Based on his statement, Mr. Drupnik thinks that those groups are responsible for Mr. Loughner's actions. Writing for the Wall Street Journal, John Fund thinks that Mr. Drupnik, himself, bears some responsibility for Mr. Loughner's actions. You know who's really responsible for Mr. Loughner's actions? That's right; it's Mr. Loughner.

Unfortunately, though, we're all about to be reminded that our liberty is in the hands of the worst members of our society: those who commit these atrocities or those who pass laws in response to them, take your pick. In its all too predictable knee-jerk reactionary way, congress is already proposing a slew of new laws to "keep this from happening again". Congressman Robert Brady (D-PA) is proposing that the ban against threatening the president be extended to all federal officials (presumably congressmen, judges, etc.) Congressman Pete King (R-NY) is proposing that guns not be allowed within 1000 feet of "powerful federal officials". (Right, the guy who was willing to ignore the law against murder is suddenly going to respect this law. Good thinking, congressman. I'm reminded of the wisdom of Jerry Seinfeld, or at least his writers, here, "You can make all the laws you want, he's still gonna bother people.") What's good for the goose is apparently not good for the gander, and the gulf between what's acceptable for those in power and those who aren't grows ever wider. Isn't anyone disturbed by the fact that federal officials deserve "more" equal protection under the law than the rest of us mere "people"?

Toning down the rhetoric isn't about restoring civilized debate; it's about stifling dissent. It's about chipping away at rights (supposedly) protected by the 1st, 2nd, and 4th amendments. It's about making abundantly clear exactly who rules over whom. Don't misunderstand; I am unequivocally not supporting threats of or actual violence. However, there are already laws against such things. Passing new ones like those described here are about separating the "rulers" from the "people" so that the people can be better controlled.

Crappy Meals

I think this clip speaks for itself. The insanity really kicks in at about 3:02.

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