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.

Against the PATRIOT Act but for it's provisions

I've been out of town for the past few days, but I read that the House passed the PATRIOT Act extensions I wrote about last week. This morning, I read that the Senate passed them as well. I didn't set out to pick on the "Tea Party", but I thought it would be interesting to look at the final vote in the House just to bring closure to my postings about the issue. Not a single member mentioned in my previous post, changed his/her vote. It turns out, it wasn't very interesting.

Most of the responses I received to my previous posts were from people in districts whose members had voted for the extension of the PATRIOT Act provisions. They told me that they were disappointed in their congressperson's vote or that their congressperson was never really a member of the Tea Party movement but simply rode the Tea Party wave of outrage into office by being less bad than the "other guy". I did receive one email, though, from a gentleman defending his congressman's "yea" vote. I found this particular email especially distressing because the signature line in the email identified the writer as the Chairman of the Tea Party in his county. I have not asked permission from the gentleman to reprint his email, but in summary, he claimed that I misrepresented what the bill was about in the house and forwarded me a note written by his congressman, Jeff Duncan (R, SC-3), and posted to Facebook. Here was my response:

I don't feel that I misrepresented it at all. The first sentence of the article reads "The House of Representatives failed to extend the PATRIOT Act provisions that I wrote about a few days ago." The words "PATRIOT Act provisions" linked to this page containing the article I wrote a few days ago which was also published on lewrockwell.com. In it, I described the three provisions at issue as well as linked from that article to the ACLU's website which contains a fuller description. Both articles linked to news stories detailing exactly what was happening, what was being voted on, and how. With all of that information, the "uninformed reader" would be willfully so.

If anything, Mr. Duncan is misrepresenting things. How can he simultaneously say that he will vote against the PATRIOT Act while voting for its provisions. As to the specific provisions, I urge you to read what the ACLU has to say about the provisions at issue and square that against Mr. Duncan's rosy picture of what the government is doing.

Mr. Duncan also says that he favors congressional oversight of the use of the provisions in the PATRIOT Act. Aside from the fact that congressional oversight is simply an opportunity for congressmembers to grandstand and almost never, if ever, results in any kind of punishment for or reform of abuses, this bill contains NO provisions for oversight of any kind.

This bill would simply have extended the provisions in question until December, period. Congress performed the same stunt -- extending the provisions -- last year in order to facilitate a fuller debate about the merits of the provisions at issue, failed to have that debate, and now wants to extend it again. Given actions like Mr. Duncan's -- saying he's against the PATRIOT Act and favors congressional oversight while voting for the PATRIOT Act without said oversight -- I see no reason to believe that the act won't simply be extended again and again until the political willpower exists to extend it permanently.

Another emailed because she was unsure exactly where I stood on the PATRIOT Act. Here was my response to her:

I think the whole thing ought to be scrapped (along with the people who wrote and voted for it).

--

On a related note, I thought this article on Mises Daily was really good today.

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.

Do as we say, not as we do

Why isn't this story getting more play?

For those who don't want to watch the two minutes of video, here's a similar story from the L.A Times:

"The people of Egypt have rights that are universal," Obama said. "That includes the right to peaceful assembly and association, the right to free speech and the ability to determine their own destiny. These are human rights and the United States will stand up for them everywhere.

"I also call upon the Egyptian government to reverse the actions that they've taken to interfere with access to the Internet, with cellphone service and to social networks that do so much to connect people in the 21st century."

Apparently, the United States will stand up for those "human rights" everywhere except in the United States:

Legislation granting the president internet-killing powers is to be re-introduced soon to a Senate committee, the proposal’s chief sponsor told Wired.com on Friday [Jan. 28, 2011].

Kimberly Dvorak, writing for examiner.com, writes:

Leading the charge are Senators Joe Lieberman (I-Conn) and Susan Collins (R-Maine) who point to WikiLeaks as a reason to control the Internet cyber space. The bill titled, "Protecting Cyberspace as a National Asset Act," would give the president the authority to track critical cyber-infrastructure lists. This legislation would give the president the ability to turn off the Internet without any judicial review. Something the world is now witnessing in Egypt.

However, Senator Collins claims the "switch" would be different in the United States. "It would provide a mechanism for the government to work with the private sector in the event of a true cyber emergency," she explained. "It would give our nation the best tools available to swiftly respond to a significant treat."

In fairness to the president, I haven't seen him publicly calling for this legislation, but there is no doubt in my mind that he will sign it if it reaches his desk.

TSA in the news

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

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

***

The TSA is "upgrading" its body scanners:

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

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

[...]

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

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

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

The three branches of government

This was too good to pass up.

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

Non-infringement vs. Protection

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

The district court ruled for the state:

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

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

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

Scariest thing(s) I've seen in awhile

Saw this on an Internet forum I frequent:

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

It was followed shortly thereafter by another who said:

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

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

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

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

***

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

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

Disappointing court cases

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

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

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

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

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

Why I write

During the whole TSA dust up that took place a few months back, I briefly touched on (one of) the reasons that I write. The one mentioned in that post is that I write to get feedback from others about what I've written. Often times, I'll also engage in Internet debates with people about issues for this very reason. I've had at least one friend of mine tell me that she'll never be convinced of anything that I have to say to her and that she would appreciate it if I would stop arguing with her and her friends on Facebook (about political issues). I tried to explain to her that I don't argue necessarily to convince her or her friends that I'm right. Rather I do it to learn. I do it to find out that I may be wrong.

That's not the whole story, though. Libertarianism forces one to look at politics and government completely differently than the way we are taught in schools or how we are told by the media. The reason that I write is because it forces me to think things through. It forces me to examine exactly what I think and believe about something, why I think and believe it, and if I can even support those positions rationally. When I sit down to write, I know that people who read it are going to disagree. So, before I publish anything, I try to critique my own work to be sure that it is internally consistent, that I've already tried to address possible rebuttals. (Despite what it may seem like, I really don't like to "argue" with people.) There have been times when I've gotten halfway through a post and abandoned it because I didn't feel that I could make a strong or coherent enough argument.

Occasionally, though a post or two does slip through which still isn't very well thought out, written, or coherent. There are a number reasons for this (any/all of which are in play for a particular bad post):

• I tend to write whatever is on my mind without thinking about the final product (post) as a whole.
• I generally write in my spare time and don't devote the amount of time really necessary to write at a higher level.
• I have a number of points I want to make about a topic, but I don't organize them ahead of time.
• I'm just not terribly well educated (yet) about a particular topic, and the writing reflects that.

The reason I write all of this is because there are a few topics that I have in my head that I want to write about, but they're very vague ideas at this point. (The "Follow the money" post/series linked above is one of these that never got fully fleshed out.) I haven't written about them, partly because I don't write "seriously" enough for me to spend a lot of time thinking about them and form a coherent post. Well, I'm going to make a run at some, if not all, of these topics in the next few weeks. I'll do my best to post a few smaller stories and some quick commentary to keep the ten or so of you that are actually still reading interested, but the longer posts will probably be fewer and further between for awhile.

The cost of liberty

From Glenn Greenwald yesterday:

What lies at the core of this mindset is desperate pursuit of a total illusion:  Absolute Safety.  People like William Galston believe that every time there is a violent or tragic act, it means that the Government should have done something -- or should have had more powers -- in order to stop it.  But that is the reasoning process of a child.  Even if we were to create an absolute Police State -- the most extreme Police State we could conjure -- acts like the Arizona shooting would still happen.  There are more than 300 million people in the U.S. and, inevitably, some of them are going to do very bad and very violent things.  Thus has it always been and always will be.  The mere existence of bad events is not evidence that the Government needs to be more empowered and liberties further restricted.  Just as there are serious costs to things like the Arizona shootings, there are serious costs to enacting the kinds of repressive systems Galston envisions, yet people like him never weigh those costs.

Having people do bad things is the price we pay for freedom.  There is a cost to all liberty.  Having to hear upsetting or toxic views is the price we pay for free speech; having propaganada spewed by large media outlets is the price we pay for a free press; and having some horrible, dangerous criminals go free is the price we pay for banning the Police from searching our homes without a warrant (the Fourth Amendment) and mandating due process before people can be imprisoned (the Fifth Amendment).  The whole American political system is predicated on the idea that we are unwilling to accept large-scale abridgments of freedom in the name of safety, and that Absolute Safety is a dangerous illusion.  There is a new report today that a police officer in Tuscon stopped Jared Loughner's car for speeding shortly before his rampage, but was unable to search his car because he lacked probable cause to do so.  Obviously, that's regrettable -- if you're a family member of one of his victims, it's horrifying -- but the alternative (allowing Police the power to search whomever they want without cause) is worse:  that's the judgment we made in the Bill of Rights.

Glenn is far more measured and articulate in his writing than I could ever hope to be. I think he hits the nail squarely on the head with this article.

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.

How to boil (control) a frog (society)

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

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

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

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

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

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

***

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

No good deed goes unpunished

Last July, an Aurora, CO man was on a road trip to Montana when he and his family stopped in Casper, WY for gas. The gentleman, William McCreary, left his wallet on top of the gas pump.

Another customer at the Common Cents convenience store found the wallet.

Deborah Heinrich said she opened it to find who it belonged to and then started making phone calls.

"I left messages at his home phone after I found his number on the Internet," Heinrich said. "I called his bank and a Harley Davidson dealer listed on a business card in his wallet."

Unfortunately, she also contacted the police for help in tracking down the owner. When Mr. McCreary, the man who lost the wallet, realized he'd forgotten it, he returned to Casper. When he couldn't find it, he filed a police report. The police then called Ms. Heinrich and asked her for the wallet. She declined stating that she would hang onto it until she heard from the owner himself what he wanted done with the wallet. At this point the police became aggressive and demanding and, at no time, did they inform Mr. McCreary of the woman who had his wallet. Ultimately, they arrested and hauled her into court for "interference". Her first trial ended in a mistrial and a second trial is scheduled for next week in which, if convicted, she could face a $1,000 fine and a one year in prison.

People can and, I'm sure, will debate the merits of the decision not to simply give the wallet to the police. I think the police were doing a bit of interfering themselves, but that's not my issue in all of this. My issue is that the woman now faces a year in prison and a sizable fine essentially for trying to return Mr. McCreary's wallet without the police's help. Even if one thinks that the woman was in the wrong for refusing to give the wallet to the police, what possible reason is there for her to face punishment? Her crime was trying to do the right thing in a manner other than that prescribed by the state. This is simply a case of the state wanting to show her (and everyone else) who is "in charge."

Even more troubling to me is the implication at the end of the article that Ms. Heinrich bears responsibility for this whole mess. It seems to me the only thing she did wrong was to hurt the feelings of the local police department who would have been denied kudos from the owner of the wallet if she had been allowed to return the wallet herself. In the end, the man who lost his wallet got it back, the police got their praise from him, the taxpayers are going to shoulder the expense of at least two trials (including bringing out Mr. McCreary from his home in Colorado to testify), and the woman faces prison time for being a good Samaritan.

Justice, indeed.

Crappy Meals

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

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Gun control at VT

Yesterday, Colin Goddard penned an op-ed piece for CNN. Mr. Goddard is a graduate of Virginia Tech University and an assistant director of legislative affairs at the Brady Campaign. He was also shot, apparently three times, during Seung-Hui Cho's shooting spree at VT back in 2007. In his op-ed, he attempts to make the case for keeping guns off campus, but he also raises a number of other issues that should be given a second look.

The mental health response also failed at Virginia Tech, as it has in other multiple shootings elsewhere. In almost every case, there have been friends, teachers and others who knew the shooter was troubled and likely dangerous. In many cases, including the Virginia Tech shooting, the shooter had sought help, then fell through the cracks due to weaknesses in the system. No one in a position of authority to act listened to and properly reported the warnings.

The shooter was apparently mentally unstable; however, he had the presence of mind to seek out help for his condition. The VT review panel that investigated the incident found that Mr. Cho had a history of mental problems but that none of them were shared between his high school and the college or even within the college due to officials' concerns that to do so would violate federal and/or state privacy laws. The panel's report also cites failure on the part of the Cook Counseling Center to "provide needed support and services" to Cho in 2005 and 2006.

Mr. Goddard points to Mr. Cho's mental health issues and the fact that the National Instant Criminal Background (NICS) Check System, the FBI check mandated by the Brady Handgun Violence Prevention Act of 1993, should have prevented Mr. Cho from purchasing his weapons.

Seung-Hui Cho was the subject of a court order finding him a danger to himself or others because of mental illness. That court order was not submitted, allowing him to pass two background checks, purchase two guns and kill 32 people and himself.

Mr. Cho purchased his guns via the legally approved method. He would have had to lie on his ATF forms, but the NICS check cleared him. In spite of Mr. Goddard's calls to "do more to keep guns from dangerous people in the first place", the NICS database check that he points to actually worked exactly as it was supposed to work. It's only as good as the information contained in the database, though, and the government (via the court that adjudicated Mr. Cho mentally ill) failed to properly populate said database.

Mr. Goddard then goes on to rail against the so-called "gun show loophole":

Also--startlingly--felons, the dangerously mentally ill and just about anybody can buy firearms without the background check or any paperwork at all. I'm not talking about on the streets or from the "black market," but in public from "private sellers" at advertised events, such as gun shows and in newspaper and catalog ads. In the transactions in which NICS background checks have been done under the Brady law, 1.9 million purchases of guns have been stopped since 1994.

The word "loophole" in this situation a misnomer. What Mr. Goddard refers to is the legal sale of firearms from one private party to another. The fact is, that in most of the country, private parties can sell firearms to each other without any kind of paperwork or records in much the same way you would sell old furniture or a refrigerator. To combat this problem, Mr. Goddard implies that this law should be changed to require NICS checks for all sales. Wait a minute. Didn't Mr. Goddard a few paragraphs back point out that the NICS check doesn't work? Mr. Cho, after all, underwent a background check and passed.

Then there's the statistic that 1.9 million gun sales have been stopped since 1994. According to the Brady Campaign's own website, 4.5 million new guns are sold each year. That means that 2.6% of gun sales have been stopped by the NICS check. (It also means that 97.4% are legal purchases by Mr. Goddard's standards.) Even that incredibly low number of purchases that are stopped is still misleading when you consider that many non-violent crimes and even dishonorable discharges (for things like being gay) from the military disqualify one from gun ownership. False positives in the system (think TSA-style no-fly lists) are also part of this number. In short, one can't conclude, on the basis of Mr. Goddard's statement, that rejection of a gun sale by NICS equates with the stoppage of crime.

But how many dangerous people bought guns through public sales where they knew there would be no background check? We can't know because there aren't records of those transactions to begin with. However, one instance everyone should remember is the Columbine High School massacre. Three of the guns used were purchased through private sales without background checks at a public gun show.

To bring home his point about how great NICS will be for preventing gun violence, Mr. Goddard appeals to the public's emotions by bringing up the Columbine High School tragedy. We've already established, though, that Mr. Cho (the Virginia Tech shooter) underwent a background check and passed. The Columbine tragedy is unrelated in this way to the Virginia Tech massacre. A closer look at the Columbine tragedy reveals, though, that NICS probably wouldn't have helped there either (and didn't since the system had been in place for nearly 6 years). Dylan Klebold and Eric Harris obtained some of their guns via a straw purchase. Another was purchased from a friend (an illegal sale because the two were under 18). The methods via which the two obtained their weapons were already illegal. The NICS system does nothing to prevent illegal sales.

Having, in his mind, adequately demonstrated that NICS is the solution to all the country's gun problems, Mr. Goddard now begins to attack the idea that law abiding citizens should be allowed to carry guns on campus.

Forcing colleges to allow students to carry concealed weapons isn't a solution and it could easily make matters worse. It effectively rewrites the book on how police respond to a situation with an active shooter. The one student with the gun would no longer be the only target -- that person could be one among several or more.

Mr. Cho killed his first victim at 7:15am. He then returned to his dorm room, changed his clothes, and went to the post office around 9am. He then returned to campus (about two hours after the initial attack) and began killing again. Someone called 9-1-1 at this point, but Cho continued shooting for another 10 or so minutes before killing himself. Police would not have been an issue here because they didn't arrive until after the entire episode had concluded. Assuming that Cho hadn't killed himself, it is likely that had students been armed, they would have killed him or at least slowed his progress. Finally, does Mr. Goddard believe that the crazy guy carrying two guns, twenty magazines, four hundred rounds of ammunition, and walking around shooting indiscriminately is indistinguishable to the police from law abiding citizens, guns drawn but most likely cowering under a desk? The victims are the ones not aiming their guns at the police. Let's give people and especially our law enforcement officers at least a little bit of credit here.

The system failed at every step of the way. Mr. Cho was unable to get the help that he requested for his mental condition. The NICS database failed to stop Mr. Cho from purchasing his weapons. The university failed to notify students that a shooter was on the loose that morning (leading Mr. Goddard to go to class when, in his own words, he would have stayed home had he known about the shooting). The police (campus and local) were unable to stop the shooter before he ended his spree by killing himself. The only thing that even had a chance of stopping Mr. Cho sooner was an armed response by the students themselves.

As Mr. Goddard himself says, "Once someone is on campus with guns and intends to kill, we've already lost." "Intends to kill" is the key phrase there, though. Armed, law abiding citizens could have prevented the loss from being as great as it was. In spite of that reality, Mr. Goddard ends his column by extolling his readers to listen to a statement by the head of the NRA in 1999 following the Columbine shooting denouncing guns in schools.

We believe in absolutely gun-free, zero-tolerance, totally safe schools. That means no guns in America's schools, period ... with the rare exception of law enforcement officers or trained security personnel.

This statement is obviously taken out of context since Mr. LaPierre was referring to guns in high schools being handled by minors. More importantly, though, it should be noted that Virginia Tech was already a gun free zone prior to Mr. Cho's shooting, and we all know how that turned out.

The "whole" truth

[Readers arriving from the Alternet article from April 28th, 2011 linking to this post may also be interested in reading my response.]

Today I got a call from a reporter asking about a blog post that I had written on November 1st. I was a bit taken aback. I thought that the time for my story had come and gone, and at first I didn't realize what she was talking about. After we hung up, I remembered that about two weeks prior to my encounter with the TSA at the San Diego airport, I wrote a blog entry about the TSA. Don't bother looking for it because I deleted it prior to posting my recollection of the events and the accompanying video. I don't have any copies of it, either. In it, though, I was especially critical of the TSA's new body scanners and pat down procedures. I had been reading about them in the news and wanted to include my two cents for the few people that actually followed my blog but weren't necessarily aware of them (the scanners and procedures). I don't recall exactly what I wrote, but I'm sure that substance of the post will turn up soon enough.

Near the end of the post, I noted that I had an upcoming trip in which I would be flying. Knowing also that I had about 12 readers, at the time, I jokingly asked how I should handle myself if I was selected for a secondary screening. I listed a number of options including "enjoying" the pat down, claiming a sexual assault, stuffing my pants with extra tissue paper prior to entering the screening area, etc. All of this, I thought, was moot at the time, though, because as I have repeatedly said, I was under the impression that neither San Diego nor Rapid City had the body scanners. When I posted my account and video of my encounter at San Diego, I also deleted the post in question. I thought that no one would believe that my encounter was not a set up if they knew that I had been critical of the TSA scanners and procedures in the past and written, even jokingly, about how to handle an encounter with them. Silly me for thinking that anything on the Internet, no matter how obscure, could ever actually be removed.

So, all of you who believed that this was planned, here is your "proof". For the umpteenth time, however, I did not script, plan, or stage what happened. I was, I have admitted repeatedly, prepared for such a situation by virtue of having read accounts of people like Steve Bierfeldt, Michael Roberts, and Meg McLain in addition to commentary about both these events and the scanners from numerous sources; but I did not plan it. To be honest, part of me wishes that I had because it would be much easier for me to tell my story, but the fact is that I didn't.

To those of you who feel duped, I apologize. There is no reason to feel that way, though. I stand by my assertion that the encounter was not planned or staged. I stand by my account of the events that occurred at San Diego airport. And I stand by everything that I have said and written since the event. I stood up to what I saw as an affront to everyone's 4th amendment protections and dignity, and that has started a real conversation about how much liberty we're willing to give up in the name of feeling safe. Let's not lose sight of what's really important, here.

And when I say that I stand by everything I've written, that includes what I wrote in my last post about being glad that my time in the spotlight had come to an end. I hope that the "revelation" that I had written about how to handle an encounter with the TSA and deleted said writing doesn't thrust me back into that spotlight, and in the event that it does, I hope that this post will answer any questions people may have about it because I truly don't want the publicity.