Texas folds 'em

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

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

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

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

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

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

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

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

Texas tries again

Says Kathryn Muratore:

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

From Star-Telegram article:

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

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

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

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

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

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

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

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

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

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

Texas capitulates

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

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

stopaustinscanners.org sees the situation this way:

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

Nevertheless, the legislature folded:

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

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

The legitimacy of voting

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

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

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

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

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

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

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

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

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

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

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

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

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

The State or the people: who is sovereign?

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

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

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

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

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

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

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

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

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

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

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

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

***

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

You are not your own

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

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

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

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

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

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

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

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

When does it end

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

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

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

In dying, Osama bin Laden showed us that we're really not so different from the very people that we deride as war-mongers and who we believe are incapable of a peaceful existence.

He taught this country the consequences of operating an open, free society. Literally, he showed Americans the price of their liberty, how many of their principles they'd be willing to cast aside, and how quickly they would do it.

In other words, bin Laden showed American exceptionalists how unexceptionally they behave when faced with horrors most older nations have endured.

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

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

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

Attorney General Eric Holder sat in front of the U.S. Senate and had this to say about the whole affair:

The operation in which Osama bin Laden was killed was lawful. He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self defense.

Ah, national defense. Of course. I wish Mr. Holder would have gone on to explain exactly what our military was defending when it shot and killed an unarmed man. Apparently, bin Laden resisted, but I find it hard to believe that a team of highly trained and very well armed men were unable to subdue a frail, old man in regular need of dialysis, without killing him. Jeffrey Toobin explains that the U.S. had to kill bin Laden because messy details like whether bin Laden would be given a civilian or military trial, who would defend him, and where his trial would be held are just too difficult for us to sort out. That's right; when the government has a "difficult" problem on it's hands, killing people is the only way out. I'm not sure why that same principle didn't apply to Saddam Hussein or Khalid Sheik Mohammed.

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

The truth is that we're not fighting for freedom. We're fighting for empire. We're fighting to bring the rest of the world under our control. Osama bin Laden understood this all too well. "We, alongside the mujaheddin, bled Russia for 10 years, until it went bankrupt," he explained.

The campaign taught bin Laden a lot. For one thing, superpowers fall because their economies crumble, not because they’re beaten on the battlefield. For another, superpowers are so allergic to losing that they’ll bankrupt themselves trying to conquer a mass of rocks and sand. This was bin Laden’s plan for the United States, too.

And that returns me to my original question: when does it end? I can't say for sure, but my money's on "soon". As for the "how" question, I'm not so sure that we're not about to follow in the Soviet Union's footsteps and those of every other major empire throughout history. Those who fail to learn from history are doomed to repeat it.

Ames and Levine smear again

Mark Ames and Yasha Levine are at it again. You may not know who these people are. I didn't before last November, and I hadn't heard of them since until Mr. Ames tried to contact me last night and his and Mr. Levine's article was published this morning. Let me refresh your memory. Last November, when I had my run-in with the TSA, these two "reporters" wrote an article trying to connect me and other like-minded individuals with a vast right-wing conspiracy funded by the billionaire Koch brothers. I never responded to it because it was so quickly derided as a fact-free smear by all sorts of media outlets, most notably Glenn Greenwald.

It seems to be a consensus even among liberal, Nation-friendly journalists that the attack on Tyner was not merely misguided, but odious, as all such journalists who commented (at least that I know of) condemned it, often in terms at least as harsh as the ones I used.  In addition to their own Nation colleague Jeremy Scahill (who denounced it as a "shameful smear"), Mother Jones' News Editor Daniel Schulman wrote:  "This Nation story is journalistic malpractice of the worst kind"; The American Prospect's Scott Lemieux, on his blog, called it "Liberal McCarthyism" and an "embarrassment"; and the usually rhetorically restrained Ezra Klein condemned it as a "hit piece" which I had "rightfully hammered."

The Nation article utterly failed to connect me to anyone on the right or any sort of activities of an "activist" nature (other than possibly my blog). Fast forward to yesterday. In keeping with his journalistic standards, Mr. Ames waited until 8:30pm EDT to contact me for a comment on his story. He tried to goad me into calling him back telling me that he was on a deadline for that evening and by referencing a blog post about the TSA that I admitted to deleting saying that it contradicted everything that I said during my interviews following my TSA encounter in San Diego. First, who waits until 8:30pm to get a comment for a story that is going to run the following morning? It was clear to me that Mr. Ames already had his story and there was nothing that I could have said that would have made a bit of difference, and that brings me to my second question. What made Mr. Ames think that I would talk to him? It's clear from the content of his article that it's a good thing that I didn't.

The thrust of the current article is that all of the anti-TSA "hysteria" is an attempt to block the TSA from unionizing. I'll come back to that charge, shortly. The article spends only a few sentences talking about me, but I'd like to address them:

The anti-TSA campaign was at its media-hysteria peak in the weeks after the Republican election sweep, spurred on by last year’s hero, John Tyner, who refused a pat-down, telling TSA agents, “You touch my junk and I'm going to have you arrested.” Tyner disappeared from the scene after he apologized on his blog, and admitted that he didn't tell the whole story and had actively tried to erase it (Tyner did not return our call or answer our message requesting comment).*

This is all true, such as it is. The context if the story would lead the reader to believe that I had concocted the entire incident either for personal gain, or as the writers suggest, to prevent unionization of the TSA (again, I'll get to the anti-union charge). Note the asterisk at the end of the paragraph. It leads to the end of the article where this final note appears:

*“To those of you who feel duped, I apologize”—so writes John Tyner in a contrite blog post headlined “The ‘Whole’ Truth”  dated November 30, 2010. A week earlier, he was the biggest media sensation in America, freeing us from state tyranny; by the time he apologized to America, America had already lost interest and moved on.

Again, true. Mr. Ames shows his journalistic integrity, adding a final, snarky smear to his article but leaves out the immediately following sentences from my blog post, from which he quotes, because they completely contradict his premise. Here they are:

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.

But we have lost sight. In fact, in my previous post, on April 14th, I wrote about this very idea. The point of that post was that fear of terrorism has caused us to overlook TSA misbehaviors including stealing from passengers, failing to prevent terrorist attacks/attempts, and abridging civil liberties. Mr. Ames apparently isn't concerned about the TSA's incompetence or its "Gestapo" tactics. No, he only wants them to be unionized; personal property, safety, and civil liberties be damned.

So, what about the charge that I'm part of this vast right-wing conspiracy? Much like his last attempt to associate me with the TEA party (of whom I've been critical), the Koch brothers (if only I could get them to send me some of their billions), or any other right-wing entity, Mr. Ames presented no evidence to support his charge: absolutely none. Here's where Ames' and Levine's journalistic standards really shine. Here is a blog post of mine from October of last year, previous to any of these events, where I stated that I don't vote. (I did vote from approximately 2004 to 2008. I registered as a "decline to state" voter, California's equivalent of non-partisan.) Here's a blog post from February of this year where I argue that democracy is a tool by which the majority can and does oppress minorities (note the specific mentions of drug legalization and gay marriage, some issues the "right" is very against). Good work tying me to right-wing ideologues, guys.

And finally, what about the charge that my encounter was rigged to prevent TSA unionization? Again Ames and Levine are wildly off-base. Here's a blog post of mine from February of this year in which I argue that preventing unions is illegal under the First Amendment. I clarified my position in response to a commenter to this post. I had suggested that the proper remedy was for the government to fire workers who wanted to unionize, not restrict their civil liberties. The commenter responded that firing workers would also be a violation of First Amendment protections because it was a different method of "breaking the union". I responded:

Firing workers does not violate the workers' freedom of association. The first amendment protects the right to freely associate. Nothing grants a person the *right* to be hired/employed by another.

Employers want to pay as little as possible; employees want to be paid as much as possible. Let them sit down and negotiate. If they can't reach an agreement, then they don't contract with each other. End of story.

Typically, in a (non-union) negotiation, the employer has more power because the prospective worker needs the job more than the employer needs the *particular* employee. Unions are an attempt to deal with this by predicating a significant number of jobs on any particular member's job. So, employees [sic] fired union workers to try to break the unions, and then the government made it illegal to fire workers because they are in a union, a clear violation of the employers' property rights.

Now the government is suffering the blowback of its own policy. It can't fire the workers because of the Wagner Act, but to try to regulate them is a violation of the first amendment. It's such delicious irony.

For those of you who missed it, I believe the Wagner Act to be unconstitutional for the same reasons that I believe union regulation to be so: it violates the freedom of association. My own writing, from months ago, again contradicts Ames' and Levine's "reporting". Good work tying me to anti-union factions of the right-wing, guys.

Ames' and Levine's assertion that my encounter with the TSA was a stunt is based on my own "admission" which, as it turns out, is an unequivocal denial that it was anything other than a stand against an infringement of civil liberties. Their attempt to tie me to right-wing entities is based on... well... nothing. It is contradicted by my numerous writings critical of any number of things that the right wing does. And finally, the implication that I'm anti-union is again contradicted by my own writing. I hesitate to call Ames and Levine hacks. Arguments should be about issues, not the people promoting them. Ames and Levine have twice now, though, smeared me in clear contradiction of the facts, in an attempt to make their case. It's really a wonder to me that anyone continues to print what they write.

An ounce of prevention

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

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

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

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

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

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

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

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

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

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

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

Gresham's law, extended by force

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

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

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

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

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

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

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

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

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

***

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

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

and

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

***

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

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

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

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

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

***

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

"Non-essential" government

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

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

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

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

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

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

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

When will we learn? Or, will we ever learn?

It should be abundantly clear to everyone now that the U.S. involvement in Libya is not limited to the creation and enforcement of a no-fly zone. "Adm. James Stavridis admitted that, while allied forces were not yet considering the deployment of troops on the ground in Libya, it was a possibility." Furthermore, the Washington Post reports that the U.S. is using planes to bomb Gaddafi's ground forces focusing their effort on "halting advances by government ground forces in and around key coastal cities". It would seem that the U.S., while not directly fighting Gaddafi, is in fact allied with his enemies, even going so far as to consider arming them despite reports that the rebels are comprised, at least in part, of members of Al Qaeda.

I'm reminded of this clip from The Daily Show a few years back:



As Glenn Greenwald points out this morning:

The real question is the wisdom of this escalated involvement. How many times do we have to arm one side of a civil war -- only for that side to then become our Enemy five or ten or fifteen years later -- before we learn not to do that any more? I wrote earlier on Twitter, ironically, that one good outcome from arming the Libyan rebels is that it will lay the foundation for our new war 10 years from now -- when Commander-in-Chief George Prescott Bush or Chelsea Clinton announce that we must wage war to stop the Libyan faction from threatening its neighbors and supporting Terrorism (with the weapons we provided them back in 2011). One of the most reliable ways that the posture of Endless War has been sustained is by our flooding the world with our weapons, only to then identify various recipients as our new (well-armed) enemy. Whether this is a feature or a bug, it is a very destructive outcome of our endless and always-escalating involvement in military conflicts around the world.

The demise of the rule of law

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

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

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

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

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

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

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

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

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

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

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

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

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

Posner continues:

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

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

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

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.