Rule of Law

Wrong for the Wrong Reasons

When in search of provocative material, I often flip through the pages of The Great Quotations — a left-slanted tome compiled by the late and long-lived George Seldes. Today, I came across this:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

That’s from Chief Justice Fred M. Vinson’s majority opinion in Dennis v. United States (1951). Here’s an outline of the case and its aftermath, as given at Wikipedia:

In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the U.S. government and for the violation of several points of the Smith Act. The party members who had been petitioning for socialist reforms claimed that the act violated their First Amendment rights to freedom of speech and that they served no clear and present danger to the nation….

[In the original trial] Prosecutor John McGohey did not assert that the defendants had a specific plan to violently overthrow the U.S. government, but rather alleged that the CPUSA’s philosophy generally advocated the violent overthrow of governments.[7] To prove this, the prosecution proffered articles, pamphlets and books (such as The Communist Manifesto) written by authors such as Karl Marx and Joseph Stalin.[8] The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.[9]

Petitioners were found guilty by the trial court and the decision was affirmed by the Second Circuit Court of Appeals. The Supreme Court granted writ of certiorari, but limited it to whether section two or three of the Smith Act violated the First Amendment and whether the same two sections violated the First and Fifth Amendments because of indefiniteness….

Handed down as a 6-2 decision by the Court on June 4, 1951, the judgment and a plurality opinion was delivered by Chief Justice of the United States Fred M. Vinson, who was joined by Justices Stanley Forman Reed, Sherman Minton, and Harold H. Burton. Separate concurring opinions were delivered by Justices Felix Frankfurter and Robert H. Jackson. Justices Hugo Black and William O. Douglas wrote separate dissenting opinions. Justice Tom C. Clark did not participate in this case.

The Court rule affirmed the conviction of the petitioner, a leader of the Communist Party in the United States. Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of the Smith Act. In affirming the conviction, a plurality of the Court adopted Judge Learned Hand’s formulation of the clear and probable danger test, an adaptation of the clear and present danger test:

In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger….

[I]n 1969, Brandenburg v. Ohio held that “mere advocacy” of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to “imminent lawless action”.[20]

This is from Wikipedia‘s account of Brandenburg v. Ohio:

The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.[1]

Brandenburg completely did away with Denniss central holding and held that “mere advocacy” of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech.

And this is from the final paragraph of the Court’s ruling in Brandenburg:

[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. 4 Such a statute falls within the condemnation of the First and Fourteenth Amendments.

So, in effect (though not in so many words), the Brandenburg Court found the Dennis Court to be wrong. Not wrong about the wrongness of overthrowing the government, just wrong about when the wrongness may be prosecuted. The Dennis Court was prematurely protective.

To put it another way, it’s all right to advocate wrong-doing, as long as the advocacy doesn’t lead directly to the wrong-doing.

Well, the Dennis Court may have been wrong, but not for the reason cited by the Brandenburg Court, which is also wrong. Why? Because it invites endless hair-splitting about the point at which advocacy translates to action. If the action being advocated is wrong, isn’t it also wrong — constitutional niceties aside — to advocate the action? I’m certainly not advocating thought-crime prosecution, but I am not satisfied with the Brandenburg Court’s conclusion.

If the purpose of the United States, as originally constituted, was to foster liberty, why should the government of the United States tolerate the promulgation of anti-libertarian views? Freedom of speech, after all, is just one manifestation of liberty. And that manifestation could vanish, with the rest, under an anti-libertarian regime.

Here’s the counter-argument: If government is allowed to suppress speech that promulgates the overthrow of America’s constitutional values in favor of anti-libertarian ones (e.g., communism), couldn’t the government then suppress speech that might have a tenuous connection with the idea of overthrowing America’s constitutional values? Government could, for example, suppress speech that proposes the establishment of a socialistic scheme that isn’t contemplated in the Constitution, such as Social Security. And if government could suppress speech of that kind, it could also suppress speech aimed at amending the Constitution to legalize socialistic schemes.

That wouldn’t be so bad, but the power to suppress speech is easily adapted to anti-libertarian uses. Untoward speech and thoughts about “protected groups” could be outlawed. Oops! Such speech and thoughts have been outlawed. “Hate thoughts” may be inferred as the unspoken motivation for a crime, given the personal characteristics of the (supposed) victim of the crime.

By now, you may have concluded that the problem isn’t the Constitution, it’s government. Or, more concretely, the persons and groups who are able to command the power of government. No piece of paper can protect liberty from the anti-libertarian machinations of government officials and the voting blocs to which they are beholden.

Which brings me back to the quotation at the beginning of this post, Chief Justice Vinson’s muddled rationale for the Supreme Court’s holding in Dennis v. United States:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

Government is not society. Nor does the United States comprise a single society, but rather multitudes of societies and interest groups: some desirous of liberty, others desirous of domination. The latter have prevailed, and have come to dominate those that desire liberty. Accordingly, “subordinate” values (e.g., free speech, property rights, and freedom of association) have not been protected by government.

Government, as it now stands, is unworthy of protection by the friends of liberty. In fact, it is (or should be) in need of protection from the friends of liberty. And may they prevail.

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Related posts:
An Agenda for the Supreme Court
Liberals and the Rule of Law
The Slippery Slope of Constitutional Revisionism
A Hypothetical Question
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Declaration of Civil Disobedience
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Society and the State
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution

Surrender? Hell No!

About six weeks ago, Ross Douthat — the truly conservative columnist at The New York Times (as opposed to David Brooks) — conceded surrender in the battle over same-sex “marriage”:

It now seems certain that before too many years elapse, the Supreme Court will be forced to acknowledge the logic of its own jurisprudence on same-sex marriage and redefine marriage to include gay couples in all 50 states.

Once this happens, the national debate essentially will be finished, but the country will remain divided, with a substantial minority of Americans, most of them religious, still committed to the older view of marriage.

So what then? One possibility is that this division will recede into the cultural background, with marriage joining the long list of topics on which Americans disagree without making a political issue out of it.

In this scenario, religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out “in the name of their freedom — and ours.”

But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado….

… We are not really having an argument about same-sex marriage anymore, and … we’re not having a negotiation. Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose. (“The Terms of Our Surrender,” March 2, 2014)

Well, it didn’t take long to learn the terms of surrender. (Not that it wasn’t obvious, given the cases of the florist in Washington and the baker in Colorado.) There is a strident branch of gay activism — backed by the usual “liberal” and “libertarian” suspects — that will brook nothing less than the surrender of fundamental rights: freedom of association, freedom of contract, and freedom of speech. The cases in Washington and Colorado are evidence of efforts to deny freedom of association and freedom of contract. Then came the full-blown attack on freedom of speech, with the ouster of Brandon Eich from his job as CEO of Mozilla because six years ago he donated $1,000 to California’s Prop 8 ballot initiative reaffirming traditional marriage.  (See the links at the bottom of this post for more about the Eich affair and its implications.)

What else would you expect, given the precedent of the “civil rights” movement? In the name of “civil rights,” Americans have long been forced to associate with and hire persons whose main qualification is the color of their skin. As for speech, no CEO of any consequence would dare say anything in public (or private) about the difficulty of finding qualified black employees, despite the demonstrably lower intelligence of blacks and their above-average proclivity for criminal behavior. The typical CEO will instead tell his minions to make the workplace look like the “face of America,” regardless of the impossibility of doing so without ripping off taxpayers, shareholders, and customers.

Why? Because honesty about the reasons for failing to meet racial quotas would cause the wrath of the Civil Rights Division and the Equal Employment Opportunity Commission to be visited upon the CEO’s corporation. And you can be sure that the worthies in those thought-crime agencies are polishing their truncheons in anticipation of the day when the failure to meet a government-imposed gay quota becomes a crime. Brendan Eich’s fate at the hands of private actors is but a hint of the things that will come at the hands of state actors.

Anyone who lived through the “civil rights” forced equality movement with open eyes could see where the “gay rights” movement would lead, long before its victory became evident to Ross Douthat. I certainly did. See, for example, “In Defense of Marriage” (May 26, 2011), “The Myth That Same-Sex ‘Marriage’ Causes No Harm” (October 14, 2011), and the posts and readings linked therein. This is from “In Defense of Marriage”:

The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

The day is coming — and it’s not far off — when it will be illegal to refuse to associate with, do business with, or hire anyone for any reason that Congress, the executive, or the courts deem unacceptable. This will have two predictable effects. It will further dampen entrepreneurial enthusiasm, which has already taken big hits, thanks to the expansion of the regulatory-welfare state. And it will further divide Americans from each other (see Michael Jonas, “The Downside of Diversity,” boston.com, August 5, 2007).

The U.S. Supreme Court to the contrary notwithstanding, I will never recognize same-sex “marriage” as a valid institution. I refuse to cede an inch in the culture war.

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Related reading:
Seth Mandel, “Brendan Eich, the Culture Wars, and the Ground Shifting beneath Our Feet,” Commentary, April 4, 2014
Jonathan S. Tobin, “Mozilla Has Rights, Just Like Hobby Lobby,” Commentary, April 7, 2014
Scott Johnson, “Roots of Totalitarian Liberalism,” Powerline Blog, April 7, 2014
Jordan Lorence, “Supreme Court Turns Down Elane Photography,” National Review Online, Bench Memos, April 7, 2014
Mollie Hemingway, “The Rise of the Same-Sex Marriage Dissidents,” The Federalist, April 8, 2014
Patrick J. Buchanan, “The New Blacklist,” Taki’s Magazine, April 8, 2014
Ed Morrisey, “Eich, Intolerance, and the Growing Demand for Absolutism,” Hot Air, April 8, 2014
Nicholas James Pell, “The Care Bears vs. McCarthy,” Taki’s Magazine, April 8, 2014
Stella Morabito, “Bait and Switch: How Same-Sex Marriage Ends Family Autonomy,” The Federalist, April 9, 2014
Robert Oscar Lopez, “Stop Crying over Mozilla and Start Fighting Back!,” American Thinker, April 14, 2014
Bill Zeiser, “We Are All Charles Murray,” The American Spectator, April 25, 2014

Other related posts at this blog: Take your pick of the many listed here, here, and here.

 

Romanticizing the State

Timothy Sandefur, an old sparring partner of mine, offers qualified praise for the state:

Cato Unbound has an excellent essay by Mark S. Weiner arguing that whatever its shortcomings, the state as a political entity is better than its likely alternative: clan rule. I remember having similar thoughts when Christina and I got married. As atheists, we occasionally face various forms of discrimination (fortunately only rarely, and typically minor) but we were still able to get married because we could obtain a civil marriage through the state. Lucky us. In centuries past, that alternative might not have been open to us. In this way, the state provided us with a service that in other times and places has not been available: secular marriage.

It’s a mystery to me why Sandefur and his spouse, both of them declared atheists and libertarians, want their marriage to be authorized by the state. Surely, they know that they could have entered into a cohabitation contract without the approval of the state. That contract could have included many provisions, including an agreement to submit their differences to binding, private arbitration.

Did they seek state approval to indicate that their marriage is just as legitimate as marriages sanctioned by churches? This strikes me as out of character for atheists and libertarians. If one doesn’t believe in God and is generally opposed to the workings of the state (beyond some minimal level of defense, perhaps), why would one unnecessarily emulate believers and acknowledge the state’s legitimacy in a sphere where its involvement is unnecessary?

All of that aside, I am bemused by Sandefur’s laudatory reference to Weiner’s essay, which begins with this:

Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.

I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.

As I argue in my recent book The Rule of the Clan, among its important benefits, a strong central state provides the most effective means to ensure that persons are treated as individuals, not merely as cousins. In its absence, people are forced to look to other institutions to address their social and legal problems, and the most enduring such organization in human history is the extended family, the clan—for which group loyalty trumps individual rights.

Because the rule of the clan provides many vital goods that liberal societies deliver less effectively, and because it is based on the natural fact of genetic affinity, it represents an ever-present gravitational force in human affairs.

One of the objects of modern liberal government is to resist this gravitational pull.

The fatal flaw in Weiner’s argument is his passing admission that “the state can be an instrument of tyranny.” The state not only can be an instrument of tyranny; it is an instrument of tyranny. When it comes to tyranny, the clan has nothing on the state.

Weiner writes as if the state were a kind of mechanical contrivance, free of human impulses and capable of a dispassionate defense of individualism. Would that it were so, but it is not so. The state — as a human institution — is powered by the operation of clannish institutions. As Daniel McCarthy writes in response to Weiner,

It’s not only the case that a strong central government—today’s “state” or the ancient empire—can safeguard the individual from being subsumed into a constraining group identity, but it’s also the case that the active component of liberty, the exercise of self-government, has tended to be a matter of group expression.

In republican Rome, the good (self-government) was inextricably mixed with the bad (rule by clannish elites). But this is the story of self-government everywhere. The House of Commons in England, for example, did not begin as an institution to represent all commoners; it began as a forum to represent the wealthiest towns and localities….

Reform of the boroughs, broadening of the franchise, and the introduction of the secret ballot were great struggles; at times they seemed almost revolutionary to Britain’s landed class. These struggles were fought and won not by individuals but by groups that were more than a little clannish and coercive. Clannishness was characteristic of the Catholic and Dissenting Protestant groups that also fought at this time—sometimes literally in streets—for their civil liberties. And in America, too, clannish groups, from racial minorities to religious and sexual ones, have had to battle for freedom. This was not at all an individualistic activity, either in its origins or its methods. The liberties we as individuals cherish today were largely won by clannish groups.

Such struggles, even when they are outlawed and cannot be conducted at the ballot box, are a kind of participation in power, as one institution of power—not the state, but the clan—compels another to recognize its demands and accede to at least some of them for the sake of peace. Even in ordinary politics at the level of Republicans and Democrats, clannishness rather than individualism is the rule, with religious, ethnic, and cultural blocs pursuing group objectives. Individualists tend to be blind to this reality; they are often at a loss to explain politics when, judged as a purely individual activity, even the act of voting is irrational. But it’s not an individual activity—it’s a clan ritual, one that bears some relation to the actual acquisition of power for the group.

Without groups, there is no participation in power—not outside of the tiniest direct democracy, at any rate. The ever present possibility of clan organization, well noted by Weiner, is a natural building block for group participation in ruling. As Weiner warns, the admixture of kinshp and government can lead to “clannism,” in which a kin group dominates the state and uses its machinery of power for selfish ends. Yet without strong clans, participation in power, for defensive as well as aggressive purposes, is forestalled. The result is Caesarism—the condition of the early Roman Empire, in which the citizen may have certain individual legal rights, but he has hardly any way of participating in government to safeguard or extend those rights….

The paradox of rule is that to secure one’s rights, one must participate in government, but participation in government means wielding power that can—and inevitably will—be used to oppress others. Participation in government necessarily has an illiberal dimension, even though it is also indispensable for securing liberty.

I call it the interest-group paradox:

Pork-barrel legislation exemplifies the interest-group paradox in action, though the paradox encompasses much more than pork-barrel legislation. There are myriad government programs that — like pork-barrel projects — are intended to favor particular classes of individuals. Here is a minute sample:

  • Social Security, Medicare, and Medicaid, for the benefit of the elderly (including the indigent elderly)
  • Tax credits and deductions, for the benefit of low-income families, charitable and other non-profit institutions, and home buyers (with mortgages)
  • Progressive income-tax rates, for the benefit of persons in the mid-to-low income brackets
  • Subsidies for various kinds of “essential” or “distressed” industries, such as agriculture and automobile manufacturing
  • Import quotas, tariffs, and other restrictions on trade, for the benefit of particular industries and/or labor unions
  • Pro-union laws (in many States), for the benefit of unions and unionized workers
  • Non-smoking ordinances, for the benefit of bar and restaurant employees and non-smoking patrons.

What do each of these examples have in common? Answer: Each comes with costs. There are direct costs (e.g., higher taxes for some persons, higher prices for imported goods), which the intended beneficiaries and their proponents hope to impose on non-beneficiaries. Just as importantly, there are indirect costs of various kinds (e.g., disincentives to work and save, disincentives to make investments that spur economic growth)….

You may believe that a particular program is worth what it costs — given that you probably have little idea of its direct costs and no idea of its indirect costs. The problem is millions of your fellow Americans believe the same thing about each of their favorite programs. Because there are thousands of government programs (federal, State, and local), each intended to help a particular class of citizens at the expense of others, the net result is that almost no one in this fair land enjoys a “free lunch.” …

The paradox that arises from the “free lunch” syndrome is much like the …. paradox of thrift, in that large numbers of individuals are trying to do something that makes certain classes of persons better off, but which in the final analysis makes those classes of persons worse off. It is like the paradox of panic, in that there is a  crowd of interest groups rushing toward a goal — a “pot of gold” — and (figuratively) crushing each other in the attempt to snatch the pot of gold before another group is able to grasp it. The gold that any group happens to snatch is a kind of fool’s gold: It passes from one fool to another in a game of beggar-thy-neighbor, and as it passes much of it falls into the maw of bureaucracy.

I call this third, insidious, paradox the interest-group paradox. It is the costliest of the three — by a long shot. It has dominated American politics since the advent of “progressivism” in the late 1800s. Today, most Americans are either “progressives” (whatever they may call themselves) or victims of “progressivism.” All too often they are both.

Sandefur’s “free lunch” is the state’s recognition and authorization of his marriage. Now, it’s true that the state was already in the business of recognizing and authorizing marriage, so Sandefur’s “free lunch” probably didn’t impose additional costs on the rest of us. But by beseeching the state for a favor, he joins millions of others in validating a panoply of state powers that, on the whole, suppress rather than uphold liberty.

Sandefur would argue that his right to be married wasn’t the state’s to grant. Rather, rights exist independently, and the state sometimes recognizes and enforces them. The state, in other words, is really in the business of bestowing benefits. But because of the interest-group paradox there’s always a price to be paid — in dollars or liberty — for those benefits. The price is often justified by referring to “the greater good,” “the people,” “the nation,” or “society” (to list but a few such shibboleths).

What does that have to do with individualism? Nothing. How does it differ from clannism? It doesn’t; it is simply clannism with a bigger army.

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Related posts:
On Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
More about Consequentialism
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Evolution, Human Nature, and “Natural Rights”
More about Conservative GovernanceWhy I Am Not an Extreme Libertarian
Facets of Liberty
Burkean Libertarianism
Understanding Hayek
Rights: Source, Applicability, How Held
What Is Libertarianism?
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Society and the State
Why Conservatism Works
The Pool of Liberty and “Me” Libertarianism
Not Guilty of Libertarian Purism
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
Conservatism as Right-Minarchism
“We the People” and Big Government
The Social Animal and the “Social Contract”
The Futile Search for “Natural Rights”
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Getting Liberty Wrong
Left-Libertarianism in a Nutshell

How Libertarians Ought to Think about the Constitution

I’m deeply grateful to Timothy Sandefur for causing me to change my mind about the constitutionality of secession. I used to believe that secession is permissible under the Constitution, and that the forcible suppression of an attempt to secede doesn’t negate the right to secede (see this and this, for example). I still believe that secession is permissible, but for a wholly different reason, to which I’ll come in due course.

My story begins with a post at Sandefur’s blog, Freespace, in which he writes:

[I] once believed that secession was legally justified. I thought slavery was evil, of course; that much is obvious. But I had read the Kentucky Resolutions, and that persuaded me that the Constitution is basically a treaty among sovereign states, who retain the right to leave the union if they want. It’s like a club, right? If you’re in a club, and you decide to leave the club, you should be free to go—even if you choose to do that for an immoral reason, right?

Then I started delving into these issues. I read The Federalist Papers, particularly number 15. I read Lincoln’s July 4, 1861, address to Congress. I read the Lincoln-Douglas Debates. I read Calhoun’s speeches and Douglass’ speeches and the Webster-Hayne debate. I read John Marshall’s decisions. I read Madison, and especially the debate between Madison and Henry at Richmond. And I read the arguments of other scholars—Jaffa, McCoy, Banning, Amar, Farber. These things changed my mind. Turns out it’s not a club. And it turns out slavery can’t be considered a separate question. (“P.S.: A word to my libertarian friends who think secession is constitutional,” Freespace, January 28, 2014)

The last link in the quoted text points to a piece by Sandefur that appeared in Reason Papers several years ago: “How Libertarians Ought to Think about the U.S. Civil War” (Vol. 28, Spring 2006, pp. 61-83). There, Sandefur quotes several writers who had a hand in the drafting and ratification of the Constitution (James Madison, James Wilson, Alexander Hamilton, and John Marshall), and says this:

These sources reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities, as the compact theory would have it. Contrary to Calhoun’s later claim that “the States, when they formed and ratified the Constitution, were distinct, independent, and sovereign communities,”30 the reality is that, in Marshall’s words, federal sovereignty

proceeds directly from the people; is ‘ordained and established’ in the name of the people. . . . It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. . . . The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit . . . . [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.31

… The federal government is directly vested with sovereignty of the whole people of the United States. Secession is not, therefore, like a person who chooses to cancel his membership in a club—because the states are not in the “club” to begin with. Only “We the People” are members of the federal club, and only the “people” which created it can change it, by altering the contours of that “people” through amendment, or a new Constitutional Convention. So, while the whole people may allow a state out of the union, or may even dissolve the Constitution entirely, a state cannot claim on its own the authority to withdraw from the union. Lincoln put it with dry understatement when he noted that advocates of secession were “not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People.’”33

These sources reveal that in 1787, both the Federalists and Anti-Federalists recognized that the U. S. Constitution was just that—a constitution for a nation, not a league of sovereign states. And, if these sources are not enough, as Akhil Reed Amar points out, “no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document’s ratification prospects in several states.”34 “[I]f a more explicit guard against misconstruction was not provided,” wrote Madison in 1831, “it is explained . . . by the entire absence of apprehension that it could be necessary.”35 …

… We have seen that the nature of federal sovereignty under the Constitution makes unilateral secession illegal. Since the Constitution is a law binding the People, and not a league of states, states have no authority to intervene between the people and the national government. If the people of a state wish to leave the union, they may not do so unilaterally, but must obtain the agreement of their fellow citizens—or they must rebel in a legitimate act of revolution. (pp. 70-74, emphasis added)

There’s more, but the quoted passages seem to cover the main points of Sandefur’s case against the constitutionality of secession.

It’s my understanding that the Constitution — if it is law — is not just law, but positive law: “statutory man-made law, as compared to ‘natural law’ which is purportedly based on universally accepted moral principles.” Sandefur’s rejection of secession as a contravention of the Constitution therefore strikes me as odd, inasmuch as Sandefur disdains legal positivism. (Just search his site, and you’ll see.)

This led me to the possibility that the Constitution isn’t “real” law, but just a legal mechanism through which state actors can impose their will on citizens. For enlightenment, I turned to Lysander Spooner, whose The Unconstitutionality of Slavery (1860) is cited in Sandefur’s paper (p. 63). Why would an anarchist and believer in natural law, as Spooner was, care a whit about the authority of the Constitution? After all, Spooner’s No Treason (1867) opens with this:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

Note well Spooner’s description of the Constitution as a contract (i.e., a compact) — entered into by certain persons at a certain time, for certain purposes. This suggests a possibility not entertained in Sandefur’s Reason Papers essay, namely, that the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people,” but a contract entered into by a fraction of the populace that became binding on the whole populace through state power.

I’ll return to that possibility after I explain how Spooner could defer to the very Constitution that he clearly disdained. The answer is found in Chapter II of The Unconstitutionality of Slavery:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” [United States vs. Fisher, 2 Cranch, 390.]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

Translation: The Constitution is a fact. State actors have the power to enforce it. The text of the Constitution doesn’t authorize slavery. Slavery is against natural law. Therefore, it accords with natural law to enforce the Constitution against slavery.

What is natural law? Here’s Spooner, writing in Chapter I of the Unconstitutionality of Slavery:

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men.

Spooner goes on and on, but never defines natural law concretely. Natural law, like natural rights, arises from human coexistence, and does not precede it. But Spooner — like most theorists who address natural law and natural rights — treats them as if they were eternal, free-standing Platonic ideals or mysterious essences. Those less inclined to mysticism, like Sandefur, strive vainly to find natural rights in the workings of human evolution. (Aside: Sandefur and I have gone several rounds on the issue of natural rights: here, here, here, here, and here; see also this.)

If there is any kind of natural law, it is the Golden Rule:

I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed in the preceding post) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

Is this a recipe for chaotic moral relativism? No. Later, in the post just quoted, I note that there’s a common, cross-national, cross-cultural, and cross-religious interpretation of the Golden Rule which comes down to this:

  • Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
  • Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)
  • Libel and slander are wrong because they are “takings” by word instead of deed.
  • It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)
  • It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
  • Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People,” etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitituion had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At the most, a minimal, “night watchman” state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

I close by quoting from an earlier post of mine:

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms [the civilizing products of spontaneous order]. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal adoption has robbed Americans of voice and mooted the exit option. And so, liberty-loving Americans have discovered — too late, like the proverbial frog in the pot of water — that they are impotent captives in their own land.

Voice is now so muted by “settled law” (e.g., “entitlements,” privileged treatment for some, almost-absolute control of commerce) that there a vanishingly small possibility of restoring constitutional government without violence. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt….

Having been subjected to a superficially benign form of slavery by our central government, we must look to civil society and civil disobedience for morally legitimate law….

When government fails to protect civil society — and especially when government destroys it — civil disobedience is in order. If civil disobedience fails, more drastic measures are called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. (Thomas Sowell, writing at National Review Online, May 1, 2007)

In Jefferson’s version,

when wrongs are pressed because it is believed they will be borne, resistance becomes morality.

The Constitution may be a legal fiction, but — as I’ve said — it’s a useful fiction when its promises of liberty can be redeemed.

That’s how this libertarian (conservative) thinks about the Constitution.

Modern Liberalism as Wishful Thinking

TheFreedictionary.com defines wishful thinking as “the erroneous belief that one’s wishes are in accordance with reality.” There’s a lot of wishful thinking going on, and it’s harmful to liberty and prosperity. I’m referring to the wishful thinking that characterizes modern liberalism, which is more properly called left-statism verging on despotism.

The dysfunctional manifestations of left-statism are too many to enumerate, let alone to detail in a single post. Obamacare is merely a current dysfunctional manifestation. It has many predecessors and will have many successors, unless constitutional government can somehow be restored in the United States. Some of the manifestations take the form of laws, executive decrees, and judicial holdings. Others reflect “big ideas” that give rise to illogical and ill-founded laws, decrees, and holdings.

Without further ado …

REGULATION WORKS

I wrote an entire post about “Regulation as Wishful Thinking.” The underlying theme is that regulators (and those who support regulation) believe that they can fine-tune economic and social behavior to achieve optimal (or at least better) outcomes than the one produced by free markets. If one paragraph sums up the effects of regulation, it’s this one:

Regulation is counterproductive for several reasons. First, it curtails positive externalities [the satisfaction of consumers' wants that is forgone due to regulatory restraints on market activity]…. The other reasons, on which I expand below, are that regulation cannot be contained to “good causes,” nor can it be tailored to do good without doing harm. These objections might be dismissed as trivial if regulatory overkill were rare and relatively costless, but it is pervasive, extremely costly its own right, and a major contributor to the economic devastation that has been wrought by the regulatory-welfare state.

Read the whole thing for the details of the argument and the evidence of the devastation. For a jarring example, see John Goodman, “FDA Regulations Kill,” John Goodman’s Health Policy Blog, February 18, 2014.

Wish: Regulation improves social and economic outcomes.

Reality: Regulation restricts the ability of people to pursue their lawful interests, and thereby harms them socially and economically.

Bottom line: Regulation is harmful, because it substitutes the judgments of “technocrats” for the decentralized knowledge of millions of citizens. Its economic cost is more than 10 percent of GDP — and it leads to unnecessary loss of life.

TAXES ARE GOOD

Consider the intuitive and also well-documented relationship between taxes and economic activity. See, for example, Christina D. and David H. Romer, “The Macroeconomic Effects of Tax Changes: Estimates Based on a New Measure of Fiscal Shocks,”  Working Paper 13264, National Bureau of Economic Research, July 2007; and William McBride, “What Is the Evidence on Taxes and Growth?,” Tax Foundation, December 18, 2012. One must bend over backward to concoct a theory which says that a rise in taxes will not reduce the rate of economic output or the growth of that rate. But such theories are propounded because their proponents favor higher taxes for two closely related reasons: more taxes enable more government spending, and more government spending usually means “social” spending. (One reason that “liberals” are against defense spending — or more of it — is that it absorbs money that could go into “social” programs.)

Wish: Higher taxes don’t reduce GDP or the rate of economic growth.

Reality: Higher taxes do reduce GDP and the rate of economic growth.

Bottom line: Higher taxes (and more government) actually harm the poor (among others) by reducing economic activity and, thereby, reducing employment. As it turns out, the effect is substantial.

THE MINIMUM WAGE HELPS LOW-SKILL WORKERS

There are economists who support the minimum wage, not necessarily because of the economic soundness of the minimum wage, but because they just like the idea that (some) low-wage workers will make more because of it. Some of those economists have even produced studies which purport to show that a minimum wage has a “small” effect on the employment of low-wage workers. As if “small” were of no consequence to those who are unable to find and keep low-wage jobs because of the minimum wage. Well, the minimum wage — and its more overtly political twin, the “living wage” — do harm low-wage workers. And that’s that. See Linda Gorman, “Minimum Wages,” The Concise Encyclopedia of Economics at The Library of Economics and Liberty. For the latest, see James Pethokoukis, “CBO: The $10.10 Minimum Wage Would Cost 500,000 Jobs, With Most Benefits Going to Non-Poor,” AEIdeas, February 18, 2014.

Wish: Government can help low-skill workers by forcing employers to pay them more.

Reality: Minimum wages and “living wages” result in less employment among low-wage workers.

Bottom line: Those who are in most need of employment, and for whom the private sector would provide employment (other things being the same), are deprived of employment by well-meaning but economically wrong-headed minimum-wage and “living wage” laws.

CAPITAL PUNISHMENT DOESN’T DETER MURDER

What about capital punishment? A paper from 1973, just a year after the U.S. Supreme Court’s decision in Furman v. Georgia effectively outlawed capital punishment, offers an exhaustive statistical analysis of the deterrent effect of capital punishment. See Isaac Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” Working Paper No. 18, Center for Economic Analysis of Human Institutions, National Bureau of Economic Analysis, November 1973. The author’s conclusion:

[A]n additional execution per year over the period in question [1933-1969] may have resulted, on average, in 7 or 8 fewer murders.

Later:

Previous investigations … have developed evidence used to unequivocally deny the existence of any deterrent or preventive effects of capital punishment. This evidence stems by and large from what amounts to informal tests of the sign of the simple correlation between the legal status of the death penalty and the murder rate across states and over time in a few states. Studies performing these tests have not considered systematically the actual enforcement of the death penalty, which may be a far more important factor affecting offenders’ behavior than the legal status of the penalty. Moreover, these studies have generally ignored other parameters characterizing law enforcement activity against murder, such as the probabilities o± apprehension and conviction, which appear to be systematically related to the probability of punishment by execution.

In my words:

Capital punishment is the capstone of a system of justice that used to work quite well in this country because it was certain and harsh. There must be a hierarchy of certain penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished.

Since the reinstatement of the death penalty in 1976 (Gregg v. Georgia), with restrictions, capital punishment has become less swift and less sure than it had been. There were 1,359 executions in 1976-2013, an average of 36 a year, as against 4,863 in 1930-1972, an average of 113 a year. That is, the rate of executions has dropped by two-thirds from its pre-Furman rate. The drop in the execution rate notwithstanding, the deterrent effect of capital punishment remained strong, at least through 2000. See Hashem Dezhbaksh, Paul Robin, and Joanna Shepherd, “Does capital punishment have a deterrent effect? New evidence from post-moratorium panel data,” American Law and Economics Review 5(2): 344–376 (available in pdf format here. The authors argue that each execution deters eighteen murders, a number that reflects the larger population of the U.S. during the period covered by their analysis. It’s hard to read the two papers cited here and believe that capital punishment doesn’t deter homicide — unless you want to believe it.

Altogether, the more “humane” treatment of murderers since 1976 has cost 600 to 1,400 lives every year, or 23,000 to 53,000 lives in the past 38 years.

Wish: Capital-punishment is nothing more than murder by the state, and (non sequitur) it doesn’t deter murder, anyway.

Reality: Capital punishment is punishment, and when it is administered surely and swiftly it does deter murder.

Bottom line: Perhaps more than 50,000 murders would have been prevented if the rate of executions hadn’t been slowed drastically following the 1972-1976 moratorium on capital punishment.

MORE GUNS MEAN MORE CRIME

There’s a twisted consistency between opposition to capital punishment and support of stringent measures to control the availability of firearms. Both positions tip the scales in favor of predators and away from peaceful citizens.

To favor gun control is to engage in wishful thinking at its best (or worst). Why? Because to favor gun control is to favor the criminal over the law-abiding citizen. But according to wishful thinkers, stringent gun control would lead to a reduction violent crimes. As with the other kinds of wishful thinking addressed here, it just ain’t so.

John Lott‘s More Guns, Less Crime is the elephant in the room, and can’t be ignored. In that book, the article on which it’s based, and other books, Lott argues that allowing adults to own or carry guns leads to a significant reduction in crime. Lott’s work was controversial — some called it incendiary. Not surprisingly, many academics opened fire on it, picking and poking at Lott’s data and methods. I say not surprisingly because — in case it has escaped your attention — academics tend to be (wishful-thinking) leftists.

To save time and space, I fast-forward to a paper by Don B. Kates and Gary Mauser, “Would Banning Firearms Reduce Murder and Suicide?,” first published in Harvard’s Journal of Public Law and Policy (Vol. 30, No. 2, 2007, pp. 649-694). Here are some relevant excerpts:

There are now 40 states where qualified citizens can obtain such a handgun permit.28 As a result, the number of U.S. citizens allowed to carry concealed handguns in shopping malls, on the street, and in their cars has grown to 3.5 million men and women.29 Economists John Lott and David Mustard have suggested that these new laws contributed to the drop in homicide and violent crime rates. Based on 25 years of correlated statistics from all of the more than 3,000 American counties, Lott and Mustard conclude that adoption of these statutes has deterred criminals from confrontation crime and caused murder and violent crime to fall faster in states that adopted this policy than in states that did not.30 (op. cit., p. 658)

Footnote 30 reads, in relevant part:

This conclusion is vehemently rejected by antigun advocates and academics who oppose armed self‐defense. See, e.g., Albert W. Alschuler, Two Guns, Four Guns, Six Guns, More Guns: Does Arming the Public Reduce Crime?, 31 VAL. U. L. REV. 365, 366 (1997); Ian Ayres & John J. Donohue III, Shooting Down the ‘More Guns, Less Crime’ Hypothesis, 55 STAN. L. REV. 1193, 1197 (2003); Dan A. Black & Daniel S. Nagin, Do Right‐to‐Carry Laws Deter Violent Crime?, 27 J. LEGAL STUD. 209, 209 (1998); Franklin Zimring & Gordon Hawkins, Concealed Handguns: The Counterfeit Deterrent, RESPONSIVE COMMUNITY, Spring 1997, at 46; Daniel W. Webster, The Claims That Right‐to‐Carry Laws Reduce Violent Crime Are Unsubstantiated (Johns Hopkins Center for Gun Policy and Research, 1997). Several critics have now replicated Lott’s work using additional or different data, additional control variables, or new or different statistical techniques they deem superior to those Lott used. Interestingly, the replications all confirm Lott’s general conclusions; some even find that Lott underestimated the crime‐reductive effects of allowing good citizens to carry concealed guns. See Jeffrey A. Miron, Violence, Guns, and Drugs: A Cross‐Country Analysis, 44 J.L. & ECON. 615 (2001); David B. Mustard, The Impact of Gun Laws on Police Deaths, 44 J.L. & ECON. 635 (2001); John R. Lott, Jr. & John E. Whitley, Safe‐Storage Gun Laws: Accidental Deaths, Suicides, and Crime, 44 J.L. & ECON. 659 (2001); Thomas B. Marvell, The Impact of Banning Juvenile Gun Possession, 44 J.L. & ECON. 691 (2001); Jeffrey S. Parker, Guns, Crime, and Academics: Some Reflections on the Gun Control Debate, 44 J.L. & ECON. 715 (2001); Bruce L. Benson & Brent D. Mast, Privately Produced General Deterrence, 44 J.L. & ECON. 725 (2001); David E. Olson & Michael D. Maltz, Right‐to‐Carry Concealed Weapon Laws and Homicide in Large U.S. Counties: The Effect on Weapon Types, Victim Characteristics, and Victim‐Offender Relationships, 44 J.L. & ECON. 747 (2001); Florenz Plassmann & T. Nicolaus Tideman, Does the Right to Carry Concealed Handguns Deter Countable Crimes? Only a Count Analysis Can Say, 44 J.L. & ECON. 771 (2001); Carlisle E. Moody, Testing for the Effects of Concealed Weapons Laws: Specification Errors and Robustness, 44 J.L. & ECON. 799 (2001); see also Florenz Plassman & John Whitley, Confirming ‘More Guns, Less Crime,’ 55 STAN. L. REV. 1313, 1316 (2003). In 2003, Lott reiterated and extended his findings, which were subsequently endorsed by three Nobel laureates. See JOHN R. LOTT, JR., THE BIAS AGAINST GUNS (2003). (op. cit., pp. 658-9, emphasis added)

There are so many gems in the article that it is hard to stop quoting it. I should say “read the whole thing,” but I’ll succumb to temptation and quote a few choice passages here, and many more in the note at the bottom of this post (footnote numbers omitted for ease of reading):

[A study by Hans Toch and Alan J. Lizotte shows that] “data on firearms ownership by constabulary area in England,” like data from the United States, show “a negative correlation,” that is, “where firearms are most dense violent crime rates are lowest, and where guns are least dense violent crime rates are highest.” (p. 653)

A second misconception about the relationship between firearms and violence attributes Europe’s generally low homicide rates to stringent gun control. That attribution cannot be accurate since murder in Europe was at an all‐time low before the gun controls were introduced. (p. 653-4)

[T]wo recent studies are pertinent. In 2004, the U.S. National Academy of Sciences released its evaluation from a review of 253 journal articles, 99 books, 43 government publications, and some original empirical research. It failed to identify any gun control that had reduced violent crime, suicide, or gun accidents. The same conclusion was reached in 2003 by the U.S. Centers for Disease Control’s review of then extant studies. (p. 654)

In the late 1990s, England moved from stringent controls to a complete ban of all handguns and many types of long guns. Hundreds of thousands of guns were confiscated from those owners law‐abiding enough to turn them in to authorities. Without suggesting this caused violence, the ban’s ineffectiveness was such that by the year 2000 violent crime had so increased that England and Wales had Europe’s highest violent crime rate, far surpassing even the United States. (p. 655)

[A]doption of state laws permitting millions of qualified citizens to carry guns has not resulted in more murder or violent crime in these states. Rather, adoption of these statutes has been followed by very significant reductions in murder and violence in these states. (p. 659)

[T]he determinants of murder and suicide are basic social, economic, and cultural factors, not the prevalence of some form of deadly mechanism. In this connection, recall that the American jurisdictions which have the highest violent crime rates are precisely those with the most stringent gun controls. (p. 663)

More than 100 million handguns are owned in the United States84 primarily for self‐defense, and 3.5 million people have permits to carry concealed handguns for protection. Recent analysis reveals “a great deal of self‐defensive use of firearms” in the United States, “in fact, more defensive gun uses [by victims] than crimes committed with firearms.” It is little wonder that the

National Institute of Justice surveys among prison inmates find that large percentages report that their fear that a victim might be armed deterred them from confrontation crimes. “[T]he felons most frightened ‘about confronting an armed victim’ were those from states with the greatest relative number of privately owned firearms.” Conversely, robbery
is highest in states that most restrict gun ownership.

Concomitantly, a series of studies by John Lott and his coauthor David Mustard conclude that the issuance of millions of permits to carry concealed handguns is associated with drastic declines in American homicide rates. (p. 671)

Per capita, African‐American murder rates are much higher than the murder rate for whites. If more guns equal more death, and fewer guns equal less, one might assume gun ownership is higher among African‐ Americans than among whites, but in fact African‐ American gun ownership is markedly lower than white gun ownership. (p. 676)

The reason fewer guns among ordinary African‐Americans does not lead to fewer murders is because that paucity does not translate to fewer guns for the aberrant minority who do murder. The correlation of very high murder rates with low gun ownership in African‐American communities simply does not bear out the notion that disarming the populace as a whole will disarm and prevent murder by potential murderers. (p. 678)

In sum, the data for the decades since the end of World War II also fails to bear out the more guns equal more death mantra. The per capita accumulated stock of guns has increased, yet there has been no correspondingly consistent increase in either total violence or gun violence. The evidence is consistent with the hypothesis that gun possession levels have little impact on violence rates. (p. 685)

Wish: Gun-control (or confiscation) will reduce violent crime.

Reality: More guns, no more crime. Crime is a product of underlying social and economic factors that vary from nation to nation, region to region, and socio-economic group to socio-economic group.

Bottom line: The desire to limit or eliminate private ownership of firearms reflects a distaste for weapons and an irrational reaction to relatively rare but horrific instances of gun violence. But the effect of limiting or eliminating private ownership is to disarm law-abiding citizens and encourage crime against them.

THE LIST GOES ON …

If the list of leftist delusions isn’t infinite, it’s certainly very long. For example, there’s wishful thinking about peace, about gender discrimination, about racial equality, about crime, about income inequality, about society, about social welfare, and about the pseudo-scientific religion of global warming.

Why so many delusions? To those who believe — despite the evidence — that persons of the “liberal” (i.e., left-statist) persuasion are smarter or more rational than persons of the right, I commend my own best-selling post, “Intelligence, Personality, Politics, and Happiness,” and two articles by James Lindgren, “Who Fears Science?“and “Who Believes That Astrology Is Scientific?” (The answers may surprise you, though they shouldn’t, now that you’ve read this far.)

To wrap up this long post, I simply urge you to peruse some of my “Favorite Posts,” especially the posts under these headings:

It’s best to start with the newer posts at the bottom of each section, and work up to earlier ones, which often are referenced or incorporated in later posts.

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More quotations from “Would Banning Firearms Reduce Murder and Suicide?.”

Since at least 1965, the false assertion that the United States has the industrialized world’s highest murder rate has been an artifact of politically motivated Soviet minimization designed to hide the true homicide rates. Since well before that date, the Soviet Union possessed extremely stringent gun controls that were effectuated by a police state apparatus providing stringent enforcement. So successful was that regime that few Russian civilians now have firearms and very few murders involve them. Yet, manifest success in keeping its people disarmed did not prevent the Soviet Union from having far and away the highest murder rate in the developed world.6 (pp. 650-1)

Luxembourg, where handguns are totally banned and ownership of any kind of gun is minimal, had a murder rate nine times higher than Germany [with 30 guns per 100 persons] in 2002. (p. 652)

[D]espite constant and substantially increasing gun ownership, the United States saw progressive and dramatic reductions in criminal violence in the 1990s. On the other hand, the same time period in the United Kingdom saw a constant and dramatic increase in violent crime to which England’s response was ever‐more drastic gun control including, eventually, banning and confiscating all handguns and many types of long guns. Nevertheless, criminal violence rampantly increased so that by 2000 England surpassed the United States to become one of the developed world’s most violence‐ridden nations. (p. 656)

[V]iolent crime, and homicide in particular, has plummeted in the United States over the past 15 years. The fall in the American crime rate is even more impressive when compared with the rest of the world. In 18 of the 25 countries surveyed by the British Home Office, violent crime increased during the 1990s. This contrast should induce thoughtful people to wonder what happened in those nations, and to question policies based on the notion that introducing increasingly more restrictive firearm ownership laws reduces violent crime. (p. 660)

The “more guns equal more death” mantra seems plausible only when viewed through the rubric that murders mostly involve ordinary people who kill because they have access to a firearm when they get angry. If this were true, murder might well increase where people have ready access to firearms, but the available data provides no such correlation. Nations and areas with more guns per capita do not have higher murder rates than those with fewer guns per capita. (pp. 665-6)

[R]educing gun ownership by the law‐abiding citizenry— the only ones who obey gun laws—does not reduce violence or murder. The result is that high crime nations that ban guns to reduce crime end up having both high crime and stringent gun laws, while it appears that low crime nations that do not significantly restrict guns continue to have low violence rates. (p. 672)

A recent study of all counties in the United States has again demonstrated the lack of relationship between the prevalence of firearms and homicide. (p. 686)

The Fall and Rise of American Empire

Most Americans don’t like the idea of empire. It smacks of power, which is comforting and enriching when you have it, though few like to admit it. In short, empire can be a good thing. Lawrence W. Reed opens “The Fall of the Republic” with this:

For nearly five centuries, Res Publica Romana—the Roman Republic—bestowed upon the world a previously unseen degree of respect for individual rights and the rule of law. When the republic expired, the world would not see those wondrous achievements again on a comparable scale for a thousand years.

Reed summarizes the decline and fall of Rome:

The Roman Republic died a death of a thousand cuts. Or, to borrow from another, well-known parable: The heat below the pot in which the proverbial frog was boiled started out as a mere flicker of a flame, then rose gradually until it was too late for the frog to escape. Indeed, for a brief time, he enjoyed a nice warm bath….

Writers from the first centuries B.C. and A.D. offered useful insights to the decline. Polybius predicted that politicians would pander to the masses, leading to the mob rule of an unrestrained democracy. The constitution, he surmised, could not survive when that happened. Sallust bemoaned the erosion of morals and character and the rise of personal power lust. Livy, Plutarch, and Cato expressed similar sentiments. To the moment of his assassination, Cicero defended the Republic against the assaults of the early dictators because he knew they would transform Rome into a tyrannical despotism.

Ultimately, the collapse of the political order of republican Rome has its origins in three developments that took root in the second century B.C., then blossomed by the end of the first. One was foreign adventure. The second was the welfare state. The third was a sacrifice of constitutional norms and the rule of law to the demands of the other two.

The American equivalent of the Roman Republic didn’t last nearly as long — only about a century, from the Spanish-American War of 1898 through 1991, which marked the end of the Cold War and victory in the Gulf War. The relative peace and prosperity of the next several years masked America’s underlying decline, which has since became evident in the military, political, and economic events of the 21st century.

The causes and symptoms of America’s decline bear a strong resemblance to the decline of Rome. Let’s start with foreign adventure. By the end of 1991, America’s influence in the world seemed assured, given collapse of the USSR and the easy victory over Iraq in response to Saddam Hussein’s grab of Kuwait. But those two events proved to be the American Empire’s last gasp.

The dust had barely settled on the Gulf War when Somalia joined the list of post-World War II military misadventures, namely, the Korean War, the Vietnam War, the lame response to the bombing of Marine barracks in Lebanon, and the jurisprudential reaction to the 1993 bombing of the World Trade Center. (Some would argue that America’s entry into World War I was also a misadventure because of the imperial origins and tragic aftermath of the peace, namely, the rise of totalitarianism. But, at least, World War I ended decisively and in a clear-cut victory for America’s side — a victory that wouldn’t have been possible without the intervention of American forces.) The seeming disinclination of American leaders to stay the course and to wreak vengeance was duly noted in Osama bin Laden’s 1996 fatwa against the United States. As if to endorse that view, the 1998 bombings of U.S. embassies in Africa were met with ineffectual missile strikes.

And then came 9/11, and in its wake the wars in Afghanistan and Iraq. Both were cast in the mold of Korea and Vietnam: not enough firepower, not enough willpower. Barack Obama’s subsequent foreign policy misadventures and general retreat from effective leadership have only cemented America’s place as a declining, feckless, no-longer-fearsome power. Whence Obama’s fecklessness? Some argue that it is evidence of a deliberate effort to debase the United States.

So much for military misadventures. Let us turn to the growth of the welfare state and the sacrifice of constitutional norms. These go hand-in-hand, and both began before America’s military misadventures after World War II.

Consider the judicial betrayal of the constitutional scheme of limited government, and of order and traditional morality. There is no way, in the course of a blog post, to assess the full scope of the betrayal, in which the U.S. Supreme Court was a willing co-conspirator. Some examples will have to do:

Home Building & Loan Association v. Blaisdell (1933) allowed governmental suspension of creditors’ remedies (i.e., foreclosure), thus undermining contractual relationships.

National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) validated the Wagner Act, which vastly expanded the ability of labor unions to extort employers, to restrict commerce, and to fatten the paychecks of union members at the expense of everyone else.

Helvering v. Davis (1937) found Social Security to be constitutional, despite the plain words of Article I, Section 8 (the enumerated powers of Congress).

Wickard v. Filburn (1942) gave Congress unlimited power to regulate anything remotely connected with interstate commerce.

Miranda v. Arizona (1966) stigmatized and hindered the efforts of police to protect the public. On the basis of “intuitive empiricism” (i.e., judicial guesswork), Miranda imposed an overly broad interpretation of the Fifth Amendment. (A subsequent empirical analysis suggests that Miranda was unwisely decided.)

Griggs v. Duke Power Company (1971) enshrined disparate impact as evidence of racial discrimination, and put the burden of proof on the accused employer.

Lemon v. Kurtzman (1971) gave judges an easy way (the “Lemon test”) to rule against any government action that might incidentally benefit religion.

Roe v. Wade (1973) authorized murder in the name of privacy.

Goss v. Lopez (1975) made it more difficult for school authorities to discipline disruptive and destructive behavior, and (in my view) established — beyond hope of reversal — the interference of the central government in matters that ought to be handled and disposed of locally.

Coker v. Georgia (1977) outlawed the death penalty in cases of rape, thus contributing to the erosion of the death penalty as a serious deterrent to the commission of heinous crimes and a just penalty for same.

Tennessee Valley authority v. Hill (1978) gave the snail darter — and as a result, all kinds of critters — precedence over human beings, under the Endangered Species Act.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) vastly increased the power of regulatory agencies by decreeing “deference” toward rules made in the absence of specific congressional authorization, as long as the rules are “reasonable.”

Garcia v. San Antonio Metropolitan Transit Authority (1985) confirmed the hollowness of the Tenth Amendment and the States’ ability to exercise any power without the permission of the central government.

Kelo v. City of New London (2005) affirmed the right of any government in the United States to seize anyone’s property, at any time, for any use — even non-governmental.

National Federation of Independent Business v. Sebelius (2012) granted the federal government power to tax anyone for any purpose, even for not doing something.

Hollingsworth v. Perry (2013) left standing a federal district court judge’s self-serving declaration that California’s duly adopted ban on same-sex “marriage” was unconstitutional, thus opening the door to similar holdings by other federal judges about other States’ duly adopted bans on same-sex “marriage.”

The judiciary didn’t instigate the vast expansion of the regulatory-welfare state and the overthrow of social norms, but the judiciary abetted them.

What does the regulatory-welfare state amount to? Huge federal welfare schemes, including but not limited to Social Security, Medicare, and Medicaid; the addition of nine cabinet-level departments to the executive branch in the preceding 100 years; the creation of the cabinet-level Environmental Protection Agency (EPA); the delegation of legislative power to the EPA and other federal agencies, and ensuing accretion of rules made and enforced by those agencies; and the pervasive centralization of power in Washington, “thanks” to judicial misfeasance of the kinds listed above, and to political sleight-of-hand (e.g., “cooperative” federal-State programs like Medicare, and grants of “federal” money — i.e., taxpayers’ money — to State and local governments).

As for constitutional norms, the courts of the United States have become perversely “libertarian.” They seem driven to overturn long-standing, time-tested behavioral norms that guide individuals toward peaceful, constructive coexistence with their compatriots. Thus the “right” to an abortion in the first trimester, based on a non-existent general right of privacy, has become the right to kill a nearly born and newly born child. The “right” to practice sodomy has become an obligation to purvey goods and services to those who practice sodomy, regardless of one’s personal views about the practice. The “right” of a male student of confused gender to use the girl’s bathroom in a Maine school threatens to evolve into the “right” to walk into any damn bathroom at any time, regardless of one’s actual gender. And on and on, down the slippery slope and into unreason, barbarity, and oppression.

Where stands the Empire today? Clearly, America has less influence in the world than it had just after World War II and even after the Gulf War. What a joke it is when the American president must be rescued from the consequences of his own (possibly deliberate) haplessness by Russia’s leader, when Iran plays rope-a-dope with Obama in the matter of nuclear weapons, and when China flexes its new-found and growing military muscle without drawing a serious response from the U.S.

American power abroad could be restored in fairly short order, given the will to do so. But the hollowing out of America’s liberty and prosperity – which began in earnest with the New Deal — threatens to be permanent, given the decades-long transformation of the nation’s legal and bureaucratic infrastructure. Government — mainly the central government — now exerts financial control over 40 percent of the economy (here, see first graph), and arguably exerts regulatory control over almost all of it.

That control has long since passed from the elected “representatives” of the people to technocrats who are bent on dictating how Americans’ conduct their lives and earn their livelihoods. Thus:

In an FDA office building in suburban Maryland, the bureaucrats gather over coffee to draft rules meant to squeeze the trans fat out of snack foods.

Four blocks from the White House, in an EPA conference room: more bureaucrats, more meetings, more drafting of rules, these aimed at forcing industrialists to spend billions cutting carbon to fend off global warming.

Congress? Who needs Congress?

Americans heard President Barack Obama declare this week that he intends to bypass the gridlocked Hill to get things done on his own. What they didn’t hear: just how far he’s actually pushing his executive authority.

An in-depth examination of the administration’s actions and plans, agency by agency, regulation by regulation, reveals an executive power play that’s broad and bold — and intensely ambitious. Far more than he let on in the State of the Union, the president has marshaled the tools of his office to advance policies, many unabashedly liberal, that push deep into everyday life for tens of millions of Americans.

He wants to change how power plants operate. And what we buy for lunch. How we travel to work. And how our kids learn math. How our gasoline is formulated. How we light our aquariums.

Already, the president’s team has enacted 300 economically significant regulations, far more than Bill Clinton, George W. Bush or Ronald Reagan did in comparable periods. Some of those rules are driven by the Affordable Care Act and Dodd-Frank banking reform, the two big laws Obama pushed through Congress early in his first term, when he had Democratic majorities in both houses. But there is far more.

Follow the link and read the rest, if you have the stomach for it.

The Empire lives, but it’s a different Empire than the one that enjoyed its last hurrah in the early 1990s. The Empire now exists not to make Americans safe and prosperous, but to dominate Americans in the name of overblown and non-existent threats (e.g., sexism, racism, endangered species, global warming), out of ersatz compassion, and with the aim of attaining the impossible: equality for all. Well, equality for all but that minority of minorities — the hard-working, tax-paying, straight, white person of European or Asian descent who minds his own business and not everyone else’s. If you are one of those, and religious as well, you are a particular object of persecution and prosecution.

In sum, a new Empire has arisen on America’s shores. If it had a motto, it would be* “trillions for the regulatory-welfare state and its clients, but not enough for defense.”

*     *     *

Related reading:
Bill Gertz, “Putin’s July 4th Message,” The Washington Free Beacon, July 6, 2012
Dean Cheng, “South China Sea: China Drops a Bombshell,” The Foundry, July 7, 2012
Walter Russell Mead and staff, “Putin Tells His Ambassadors: The West Is All Washed Up,” The American Interest, July 9, 2012
Erica Ritz, “Troubling? Putin Oversees Largest Nuclear Tests since the Cold War,” The Blaze, October 20, 2012
Norman Podhoretz, “Obama’s Successful Foreign Failure,” WSJ.com, September 8, 2013
Melanie Phillips, “Putin Checkmates America,” Melanie’s Blog, September 15, 2013
Walter Russell Mead (and staff), “Mixed Messages from Washington Confuse Allies,” The American Interest, December 3, 2013
Lawrence W. Reed, “The Fall of the Republic,” The Freeman, January 8, 2014
doriangrey1, “The Iranian Rope-a-Dope,” The Wilderness of Mirrors, January 20, 2014
Bill Vallicella, “The Decline of the West: How Long Can We Last?,” Maverick Philosopher, January 21, 2014
Adam Garfinkle, “Obama’s Middle East Recessional” in four parts (here, here, here, here), The American Interest, January 21, 2014
Victor Davis Hanson, “Obama’s Recessional,” RealClearPolitics, January 22, 2014
Elise Cooper, “Barack Obama’s Foreign Policy: An Utter Failure,” American Thinker, January 26, 2014
Dan Roberts, “White House Warns Obama Ready to ‘Bypass on 2014 Agenda,” The Guardian, January 26, 2014
Alexander Boltin, “Cruz: Putin Plays Chess, Obama Plays Checkers on Foreign Policy,” The Hill, January 28, 2014
Stephanie Simon, “Obama’s Power Play,” Politico, January 31, 2014
Tom Blumer, “Is It Over and We Just Don’t Know It? Have We Lost Our Founders’ Government?,” PJ Media, February 10, 2014
Victor Davis Hanson, “An Orwellian Nation of Obamathink,” Jewish World Review, February 13, 2014
Angelo M. Codevilla, “Do We Deserve the Constitution of 2014?,” Library of Law and Liberty, February 16, 2014
Richard Winchester, “Left-Wing Totalitarianism in America,” American Thinker, February 17, 2014

Related posts:
The Near-Victory of Communism
Tocqueville’s Prescience
The Left
Our Enemy, the State
“Intellectuals and Society”: A Review
The Left’s Agenda
Rating America’s Wars
Transnationalism and National Defense
The Left and Its Delusions
The Destruction of Society in the Name of “Society”
September 20, 2001: Hillary Clinton Signals the End of “Unity”
The War on Terror, As It Should Have Been Fought
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Well-Founded Pessimism
Defense as an Investment in Liberty and Prosperity
Liberty and Society
Tolerance on the Left
America: Past, Present, and Future
The Barbarians within and the State of the Union
Estimating the Rahn Curve: Or, How Government Spending Inhibits Economic Growth
America’s Financial Crisis Is Now
The World Turned Upside Down
“We the People” and Big Government
The Culture War
Defense Spending: One More Time
Parsing Political Philosophy (II)
__________
* A mockery of the words of Robert Goodloe Harper, who as a member of the U.S. House of Representatives in 1797, said “Millions for defense, but not one cent for tribute.” The remark was occasioned by a demand from France for tribute (a bribe) in exchange for the release of American ships that had been seized by the French.

The Futile Search for “Natural Rights”

Timothy Sandefur has begun a guest-blogging stint at The Volokh Conspiracy, whence he will regale us with theses from his book, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Sandefur’s first post is “The Conscience of the Constitution: An Introduction.” In it, he writes:

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom.

Let’s start with the easy part: the first sentence of the second-quoted paragraph. Did the founders really hold that people are inherently free? All founders, including slave owners? All people, including slaves? Or did the founders simply want to relocate the seat of power from London to the various State capitals, where local preferences (including anti-libertarian ones) could prevail? Wasn’t that what the Declaration of Independence and Articles of Confederation were mainly about? The Constitution simply moved some of the States’ power toward the national capital, and then mainly to establish uniformity in the conduct of foreign policy and war-making, to eliminate intra-State trade barriers, and to establish a uniform policy with respect to international trade.

On the whole, the original Constitution as amended quickly by the Bill of Rights was largely a “States’ rights” document. Certain individual rights were recognized by the central government, but it was left to the powers-that-be in each State to decide where to draw the line between individual rights and governmental powers. (As an aside I note that the Constitution remained a States’ rights document until the ratification of Amendment XIV. And then, over the decades — and through a combination of legislative, executive, and judicial actions — it became a central-government-powers document, from which much anti-libertarian mischief has emanated.)

In sum, Sandefur’s premise is wrong. The Declaration and Constitution are not libertarian manifestos — as Sandefur, in effect, characterizes them. Despite the rhetoric about “We the People,” “inalienable rights,” “liberty,” and the rest of it, the Declaration and Constitution are about who governs, and about the division of rights and powers between “the people” and government..

The essential problem with Sandefur’s analysis lies in his Manichean approach to rights. In his view, they are either inherent in individual persons or they are granted by government. (He denies the second possibility, of course.) There is a third way, which doesn’t figure in Sandefur’s post (though perhaps he addresses it in the book). The third way is hinted at in the paper by Randy Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights,” to which Sandefur links: “natural rights…. describe how others ought to act towards rights-holders.”

In other words, the thing (for want of a better word) that arises from human nature is not a set of rights that each person “owns”; rather, it is an inclination or imperative to treat others as if they have rights. This idea of being inclined (or compelled) to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we (most of us) learn that it is a good thing to leave others alone as long as they do no harm to us or mean no harm to us. That is a much more plausible explanation of rights than the claim that rights inhere in individuals as rights-holders.

Given the more plausible view that rights are a matter of “acting toward” others, it should be evident — to all but romanticists of Sandefur’s ilk — that rights are not a priori (“inherent”) but arise from interpersonal bargaining (at best) and governmental edicts (at worst). It cannot be otherwise, for even if human beings are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way. Thus claims about “natural rights” are not only foolish but futile. Rights, inescapably, are a matter of persuasion (at best) and power (at worst, unless the power happens to be on the “right” side).

That said, as Sandefur observes in “Teleology without God,” he and I “agree on the qualities of … rights once their existence is granted.” Specifically, we seem to agree that negative rights are the only rights worthy of the name because only negative rights can be held universally.

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make something-for-nothing promises of positive rights.

*     *     *

Note: Much of the foregoing is borrowed from “Evolution, Human Nature, and ‘Natural Rights’,” my last entry in an exchange of posts with Sandefur on the subject of rights. He has not, as far as I know, issued a rejoinder.

*     *     *

Related posts:

These are some of the many posts at this blog which bear on the origins, nature, suppression, and restoration of negative rights:

On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
More about Consequentialism
Atheism, Agnosticism, and Science
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Social Justice
Evolution, Human Nature, and “Natural Rights”
Burkean Libertarianism
Rights: Source, Applicability, How Held
What Is Libertarianism?
Nature Is Unfair
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Why Conservatism Works
The Pool of Liberty and “Me” Libertarianism
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
“We the People” and Big Government
The Social Animal and the “Social Contract”

Not-So-Random Thoughts (IX)

Demystifying Science

In a post with that title, I wrote:

“Science” is an unnecessarily daunting concept to the uninitiated, which is to say, almost everyone. Because scientific illiteracy is rampant, advocates of policy positions — scientists and non-scientists alike — often are able to invoke “science” wantonly, thus lending unwarranted authority to their positions.

Just how unwarranted is the “authority” that is lent by publication in a scientific journal?

Academic scientists readily acknowledge that they often get things wrong. But they also hold fast to the idea that these errors get corrected over time as other scientists try to take the work further. Evidence that many more dodgy results are published than are subsequently corrected or withdrawn calls that much-vaunted capacity for self-correction into question. There are errors in a lot more of the scientific papers being published, written about and acted on than anyone would normally suppose, or like to think. . . .

In 2005 John Ioannidis, an epidemiologist from Stanford University, caused a stir with a paper showing why, as a matter of statistical logic, the idea that only one . . . paper in 20 gives a false-positive result was hugely optimistic. Instead, he argued, “most published research findings are probably false.” As he told the quadrennial International Congress on Peer Review and Biomedical Publication, held this September [2013] in Chicago, the problem has not gone away. (The Economist, “Trouble at the Lab,” October 19, 2013)

Tell me again about anthropogenic global warming.

The “Little Ice Age” Redux?

Speaking of AGW, remember the “Little Ice Age” of the 1970s?

George Will does. As do I.

One Sunday morning in January or February of 1977, when I lived in western New York State, I drove to the news stand to pick up my Sunday Times. I had to drive my business van because my car wouldn’t start. (Odd, I thought.) I arrived at the stand around 8:00 a.m. The temperature sign on the bank across the street then read -16 degrees (Fahrneheit). The proprietor informed me that when he opened his shop at 6:00 a.m. the reading was -36 degrees.

That was the nadir of the coldest winter I can remember. The village reservoir froze in January and stayed frozen until March. (The fire department had to pump water from the Genesee River to the village’s water-treatment plant.) Water mains were freezing solid, even though they were 6 feet below the surface. Many homeowners had to keep their faucets open a trickle to ensure that their pipes didn’t freeze. And, for the reasons cited in Will’s article, many scientists — and many Americans — thought that a “little ice age” had arrived and would be with us for a while.

But science is often inconclusive and just as often slanted to serve a political agenda. (Also, see this.) That’s why I’m not ready to sacrifice economic growth and a good portion of humanity on the altar of global warming and other environmental fads.

Well, the “Little Ice Age” may return, soon:

[A] paper published today in Advances in Space Research predicts that if the current lull in solar activity “endures in the 21st century the Sun shall enter a Dalton-like grand minimum. It was a period of global cooling.” (Anthony Watts, “Study Predicts the Sun Is Headed for a Dalton-like Solar Minimum around 2050,” Watts Up With That?, December 2, 2013)

The Dalton Minimum, named after English astronomer John Dalton, lasted from 1790 to 1830.

Bring in your pets and plants, cover your pipes, and dress warmly.

Madison’s Fatal Error

Timothy Gordon writes:

After reading Montesquieu’s most important admonitions in Spirit of the Laws, Madison decided that he could outsmart him. The Montesquieuan admonitions were actually limitations on what a well-functioning republic could allow, and thus, be. And Madison got greedy, not wanting to abide by those limitations.

First, Montesquieu required republican governments to maintain limited geographic scale. Second, Montesquieu required republican governments to preside over a univocal people of one creed and one mind on most matters. A “res publica” is a public thing valued by each citizen, after all. “How could this work when a republic is peopled diversely?” the faithful Montesquieuan asks. (Nowadays in America, for example, half the public values liberty and the other half values equality, its eternal opposite.) Thirdly—and most important—Montesquieu mandated that the three branches of government were to hold three distinct, separate types of power, without overlap.

Before showing just how correct Montesquieu was—and thus, how incorrect Madison was—it must be articulated that in the great ratification contest of 1787-1788, there operated only one faithful band of Montesquieu devotees: the Antifederalists. They publicly pointed out how superficial and misleading were the Federalist appropriations of Montesquieu within the new Constitution and its partisan defenses.

The first two of these Montesquieuan admonitions went together logically: a) limiting a republic’s size to a small confederacy, b) populated by a people of one mind. In his third letter, Antifederalist Cato made the case best:

“whoever seriously considers the immense extent of territory within the limits of the United States, together with the variety of its climates, productions, and number of inhabitants in all; the dissimilitude of interest, morals, and policies, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union.”

Then, to bulwark his claim, Cato goes on to quote two sacred sources of inestimable worth: the Bible… and Montesquieu. Attempting to fit so many creeds and beliefs into such a vast territory, Cato says, would be “like a house divided against itself.” That is, it would not be a res publica, oriented at sameness. Then Cato goes on: “It is natural, says Montesquieu, to a republic to have only a small territory, otherwise it cannot long subsist.”

The teaching Cato references is simple: big countries of diverse peoples cannot be governed locally, qua republics, but rather require a nerve center like Washington D.C. wherefrom all the decisions shall be made. The American Revolution, Cato reminded his contemporaries, was fought over the principle of local rule.

To be fair, Madison honestly—if wrongly—figured that he had dialed up the answer, such that the United States could be both vast and pluralistic, without the consequent troubles forecast by Montesquieu. He viewed the chief danger of this combination to lie in factionalization. One can either “remove the cause [of the problem] or control its effects,” Madison famously prescribed in “Federalist 10″.

The former solution (“remove the cause”) suggests the Montesquieuan way: i.e. remove the plurality of opinion and the vastness of geography. Keep American confederacies small and tightly knit. After all, victory in the War of Independence left the thirteen colonies thirteen small, separate countries, contrary to President Lincoln’s rhetoric four score later. Union, although one possible option, was not logically necessary.

But Madison opted for the latter solution (“control the effects”), viewing union as vitally indispensable and thus, Montesquieu’s teaching as regrettably dispensable: allow size, diversity, and the consequent factionalization. Do so, he suggested, by reducing them to nothing…with hyper-pluralism. Madison deserves credit: for all its oddity, the idea actually seemed to work… for a time. . . . (“James Madison’s Nonsense-Coup Against Montesqieu (and the Classics Too),” The Imaginative Conservative, December 2013)

The rot began with the advent of the Progressive Era in the late 1800s, and it became irreversible with the advent of the New Deal, in the 1930s. As I wrote here, Madison’s

fundamental error can be found in . . . Federalist No. 51. Madison was correct in this:

. . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. . . .

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] . . . by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. . . .

In fact, as Montesqieu predicted, diversity — in the contemporary meaning of the word, is inimical to civil society and thus to ordered liberty. Exhibit A is a story by Michael Jonas about a study by Harvard political scientist Robert Putnam, “E Pluribus Unum: Diversity and Community in the Twenty-first Century“:

It has become increasingly popular to speak of racial and ethnic diversity as a civic strength. From multicultural festivals to pronouncements from political leaders, the message is the same: our differences make us stronger.

But a massive new study, based on detailed interviews of nearly 30,000 people across America, has concluded just the opposite. Harvard political scientist Robert Putnam — famous for “Bowling Alone,” his 2000 book on declining civic engagement — has found that the greater the diversity in a community, the fewer people vote and the less they volunteer, the less they give to charity and work on community projects. In the most diverse communities, neighbors trust one another about half as much as they do in the most homogenous settings. The study, the largest ever on civic engagement in America, found that virtually all measures of civic health are lower in more diverse settings. . . .

. . . Putnam’s work adds to a growing body of research indicating that more diverse populations seem to extend themselves less on behalf of collective needs and goals.

His findings on the downsides of diversity have also posed a challenge for Putnam, a liberal academic whose own values put him squarely in the pro-diversity camp. Suddenly finding himself the bearer of bad news, Putnam has struggled with how to present his work. He gathered the initial raw data in 2000 and issued a press release the following year outlining the results. He then spent several years testing other possible explanations.

When he finally published a detailed scholarly analysis in June in the journal Scandinavian Political Studies, he faced criticism for straying from data into advocacy. His paper argues strongly that the negative effects of diversity can be remedied, and says history suggests that ethnic diversity may eventually fade as a sharp line of social demarcation.

“Having aligned himself with the central planners intent on sustaining such social engineering, Putnam concludes the facts with a stern pep talk,” wrote conservative commentator Ilana Mercer, in a recent Orange County Register op-ed titled “Greater diversity equals more misery.”. . .

The results of his new study come from a survey Putnam directed among residents in 41 US communities, including Boston. Residents were sorted into the four principal categories used by the US Census: black, white, Hispanic, and Asian. They were asked how much they trusted their neighbors and those of each racial category, and questioned about a long list of civic attitudes and practices, including their views on local government, their involvement in community projects, and their friendships. What emerged in more diverse communities was a bleak picture of civic desolation, affecting everything from political engagement to the state of social ties. . . .

. . . In his findings, Putnam writes that those in more diverse communities tend to “distrust their neighbors, regardless of the color of their skin, to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more but have less faith that they can actually make a difference, and to huddle unhappily in front of the television.”“People living in ethnically diverse settings appear to ‘hunker down’ — that is, to pull in like a turtle,” Putnam writes. . . . (“The Downside of Diversity,” The Boston Globe (boston.com), August 5, 2007)

See also my posts, “Liberty and Society,” “The Eclipse of ‘Old America’,” and “Genetic Kinship and Society.” And these: “Caste, Crime, and the Rise of Post-Yankee America” (Theden, November 12, 2013) and “The New Tax Collectors for the Welfare State,” (Handle’s Haus, November 13, 2013).

Libertarian Statism

Finally, I refer you to David Friedman’s “Libertarian Arguments for Income Redistribution” (Ideas, December 6, 2013). Friedman notes that “Matt Zwolinski has recently posted some possible arguments in favor of a guaranteed basic income or something similar.” Friedman then dissects Zwolinski’s arguments.

Been there, done that. See my posts, “Bleeding-Heart Libertarians = Left-Statists” and “Not Guilty of Libertarian Purism,” wherein I tackle the statism of Zwolinski and some of his co-bloggers at Bleeding Heart Libertarians. In the second-linked post, I say that

I was wrong to imply that BHLs [Bleeding Heart Libertarians] are connivers; they (or too many of them) are just arrogant in their judgments about “social justice” and naive when they presume that the state can enact it. It follows that (most) BHLs are not witting left-statists; they are (too often) just unwitting accomplices of left-statism.

Accordingly, if I were to re-title ["Bleeding-Heart Libertarians = Left-Statists"] I would call it “Bleeding-Heart Libertarians: Crypto-Statists or Dupes for Statism?”.

*     *     *

Other posts in this series: I, II, III, IV, V, VI, VII, VIII

“We the People” and Big Government

This post incorporates three earlier installments and completes the series.

When the Framers of the Constitution began the preamble with “We the People” and spoke as if the Constitution had been submitted to “the People” for ratification, they were indulging in rhetorical flourishes (at best) and misleading collectivization (at worst). The Founders may have been brave and honorable men, and their work — as long as it lasted — served liberty-loving Americans well. But do not forget that the Framers were politicians eager to sell a new framework of government. They were not gods or even demi-gods. They served liberty ill when they invoked the idea of a national will — expressed through government. Their coinage lends undeserved credence and emotional support to the rhetoric of statist demagogues, a breed of which Barack Obama is exemplary.

*     *     *

I make two basic points in this very long post:

1. It is a logical and factual error to apply the collective “we” to Americans, except when referring generally to the citizens of the United States. Other instances of “we” (e.g., “we” won World War II, “we” elected Barack Obama) are fatuous and presumptuous. In the first instance, only a small fraction of Americans still living had a hand in the winning of World War II. In the second instance, Barack Obama was elected by amassing the votes of fewer than 25 percent of the number of Americans living in 2008 and 2012. “We the People” — that stirring phrase from the Constitution’s preamble — was never more hollow than it is today.

2. Further, the logical and factual error supports the unwarranted view that the growth of government somehow reflects a “national will” or consensus of Americans. Thus, appearances to the contrary (e.g., the adoption and expansion of national “social insurance” schemes, the proliferation of cabinet departments, the growth of the administrative state) a sizable fraction of Americans (perhaps a majority) did not want government to grow to its present size and degree of intrusiveness. And a sizable fraction (perhaps a majority) would still prefer that it shrink in both dimensions. In fact, The growth of government is an artifact of formal and informal arrangements that, in effect, flout the wishes of many (most?) Americans. The growth of government was not and is not the will of “we Americans,” “Americans on the whole,” “Americans in the aggregate,” or any other mythical consensus.

Continued below the fold. (more…)

Another Obama Lie, and a Rant

From a CBS News story about the latest Obamacare fiasco:

President Obama on Thursday announced an administrative policy change that will let people keep their existing health insurance for another year, but the plan is already facing pushback from Republicans, some Democrats and the insurance industry….

…Mr. Obama predicted Thursday, “There’s gonna be some state-by-state evaluation on how this is handled.”

He added, however, that the “key point” is that it’s no longer the Affordable Care Act that’s responsible for plans being dropped….

What a whopper. Of course the ACA is responsible. Insurance companies were diligently complying with the ACA. And that didn’t happen overnight; they began to gear up for compliance as soon as ACA became law.

Now, one of Obama’s minions issues — by unconstitutional fiat — a “fix” that can’t easily be implemented, even if allowed by the insurance commissioners of some States. It’s a blatant and cynical PR move.

Here’s the rant — mine, not Obama’s (he can rant on his own time):

Left-wing amateur hour has dragged on 4-10/12 years too long. As the bumper sticker says, don’t blame me, I didn’t vote for him.

Did I foresee this particular fiasco? Of course not, but I foresaw that Obama would try to use government in ways that would harm most hard-working, tax-paying, law-abiding Americans. Well, thanks to Obamacare, tax increases, racial politics, and various regulatory edicts he’s met my expectations. He’s also doing a good job of turning the U.S. into a second-rate power, unable to defend Americans’ far-flung overseas interests against the Russian and Chinese power grabs that are almost certainly in the works.

Even if Obama had succeeded in “bringing the country together” (or something to that effect), it would be a country that millions of us want no part of. On Thursday, November 28, if I give thanks for anything, it will be for a divided nation in which there is still principled and vigorous resistance to the likes of Barack Obama.
*     *     *
Related posts: Just about everything here.

The View from Here

You know what happens when a law is enacted to protect a “minority,” don’t you? The minority acquires privileged status in the eyes of the law. Any action that is claimed to deprive the “minority” of its rights brings the wrath of the state down on the purported offender. And the same law enables members of the “minority” to attain jobs, promotions, and university admissions for which they are otherwise unqualified.

My opening paragraph is prompted by the likely passage of a “gay rights in workplace” bill by the U.S. Senate. The bill is unlikely to be approved soon by the U.S. House of Representatives, but I won’t say “never.” Many members of the GOP are eager to seem “nice,” and enough of them might vote with Democrats to pass the bill and send it to B.O. for signature. Such an act of appeasement will, of course, go unrewarded by voters of the left. But panicked lawmakers are immune to logic, and devoid of principles.

The “gay rights” issue is only a symptom of America’s decay. The official elevation of gays to privileged status is of a piece with several other developments: the very possible failure of efforts to derail death-dealing Obamacare, the equally likely failure of efforts to curb murderous abortion (the gateway to involuntary euthanasia), the ever-growing dependence of Americans on an unaffordable welfare state, an unchecked regulatory apparatus, feminized and gutted defenses, groveling before enemies, and the suppression of dissent in the name of “rights,” “social justice,” “equal protection,” and other Orwellian catch-phrases.

It is altogether evident that America soon will be an irreversibly effete, statist, inhumane, and appeasing realm. In it, every truly beneficial impulse — like those that energized America’s revolution against Britain, the framing of a Constitution that promised the preservation of liberty, the defeat of oppressive regimes in wars hot and cold, and the creation of the world’s most dynamic and productive economy — will be squelched.

The barbarians within, and their willing dupes, are in the saddle. It can happen here, and it is happening here. America is about to become the land of the unfree and the home of the weak-kneed.

*     *     *

Related reading: Joe Herring, “I Am Now a Dissident (and You Should Be Too!),” American Thinker, November 6, 2013

Related posts:
Diversity
Putting Hate Crimes in Perspective
The Cost of Affirmative Action
Why Not Just Use SAT Scores?
The Face of America
Affirmative Action: A Modest Proposal
Race, Intelligence, and Affirmative Action
Affirmative Action: Two Views from the Academy
Affirmative Action, One More Time
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
The Course of the Mainstream
A Contrarian View of Segregation
Much Food for Thought
Guilty Until Proven Innocent
After the Bell Curve
A Footnote . . .
Schelling and Segregation
Law, Liberty, and Abortion
Black Terrorists and “White Flight”
Positive Rights and Cosmic Justice: Part IV (with links to earlier parts of the series)
Timely Material
Affirmative Action: Two Views from the Academy, Revisited
It’s the Little Things That Count
A Footnote to a Footnote
Let Me Be Perfectly Clear…
FDR and Fascism
An FDR Reader
“Family Values,” Liberty, and the State
Is There Such a Thing as Society
The People’s Romance
Intellectuals and Capitalism
Fascism
Conspicuous Consumption and Race
An Honest Woman Speaks Out
Fascism with a “Friendly” Face
The Interest-Group Paradox
Parsing Political Philosophy
Is Statism Inevitable?
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
A New, New Constitution
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
The Real Constitution and Civil Disobedience
The Near-Victory of Communism
Tocqueville’s Prescience
First Principles
The Shape of Things to Come
Accountants of the Soul
Invoking Hitler
Is Liberty Possible?
The Left
Perry v. Schwarzenegger, Due Process, and Equal Protection
The Constitution: Original Meaning, Corruption, and Restoration
Rationalism, Social Norms, and Same-Sex “Marriage”
A Moral Dilemma
A Conversation with Uncle Sam
Society and the State
I Want My Country Back
The “Forthcoming Financial Collapse”
Undermining the Free Society
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
“Intellectuals and Society”: A Review
Government vs. Community
The Evil That Is Done with Good Intentions
The Destruction of Society in the Name of “Society”
About Democracy
Externalities and Statism
Taxes: Theft or Duty?
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
The Left’s Agenda
Substantive Due Process and the Limits of Privacy
In Defense of Marriage
The Left and Its Delusions
The Destruction of Society in the Name of “Society”
A Declaration of Civil Disobedience
Crimes against Humanity
Abortion and Logic
The Myth That Same-Sex “Marriage” Causes No Harm
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Society and the State
Are You in the Bubble?
Defense as an Investment in Liberty and Prosperity
Our Perfect, Perfect Constitution
Abortion, Doublethink, and Left-Wing Blather
Race and Reason: The Derbyshire Debacle
Race and Reason: The Victims of Affirmative Action
Not-So-Random Thoughts (III)
Race and Reason: The Achievement Gap — Causes and Implications
Don’t Use the “S” Word When the “F” Word Will Do
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
The Capitalist Paradox Meets the Interest-Group Paradox
Genetic Kinship and Society
How Not to Cope with Government Failure
Riots, Culture, and the Final Showdown (revisited)
Where We Are, Economically
The Economic Outlook in Brief
Is Taxation Slavery?
Obamanomics: A Report Card
Well-Founded Pessimism
A Declaration of Independence
The 80-20 Rule, Illustrated
America: Past, Present, and Future
Defending Liberty against (Pseudo) Libertarians
America: Past, Present, and Future
Restoring Constitutional Government: The Way Ahead
Economic Horror Stories: The Great “Demancipation” and Economic Stagnation
The Fallacy of the Reverse-Mussolini Fallacy
“Conversing” about Race
Economics: A Survey
IQ, Political Correctness, and America’s Present Condition
The Barbarians Within and the State of the Union
Why Are Interest Rates So Low?
Estimating the Rahn Curve: Or, How Government Spending Inhibits Economic Growth
America’s Financial Crisis Is Now
The World Turned Upside Down
“We the People” and Big Government: Part I
“We the People” and Big Government: Part I (continued)
“We the People” and Big Government: Part II (first installment)

Government Failure Comes as a Shock to Liberals

Richard Cohen of WaPo shares his disappointment in the god the failed:

Where is Casey Stengel when we need him? In 1962, as the manager of the brand new and determinedly hapless New York Mets — 40 wins, 120 losses — he looked up and down his bench one dismal day and wondered, “Can’t anybody here play this game?” That phrase kept coming at me recently as I watched the impressively inept performance of the Obama administration in both foreign and domestic policy. On a given day, this administration makes the ’62 Mets look good….

[Obama] has lately so mishandled both domestic and foreign policy that he is in mortal peril of altering his image. This unsettling and uncharacteristic incompetence became shockingly clear when Obama failed to come to grips with the Syrian civil war….

The debacle of the Affordable Care Act’s Web site raised similar questions about confidence….

Something went wrong. People could not sign up. Why? Not sure. Who’s at fault? Apparently no one. An act of God….

Poor Richard. He doesn’t get it. The problem isn’t just Barack Obama, it’s government. What Cohen is witnessing is government failure. It’s pervasive and inevitable — though its ill effects often go unremarked. (For example, the significant reduction of economic growth that has resulted from the growth of government spending and regulation.)

When government failure assumes spectacular proportions and can’t be ignored or explained away, it gets attention because it explodes the Nirvana fallacy about government that infects so many politicos, mediacrats, and real people (but not Americans on the whole).

What’s most striking about Cohen’s piece and similar outpourings from the media is that the target is a Democrat. I would say that a new dawn of realism is breaking, but that would be to indulge in the Nirvana fallacy.

*     *     *

Related posts:
Undermining the Free Society
Government vs. Community
Government Failure: An Example
Bootleggers, Baptists, and Pornography
The Public-School Swindle
The Evil That Is Done with Good Intentions
Externalities and Statism
Society and the State
David Brooks, Useful Idiot for the Left
Don’t Use the “S” Word When the “F” Word Will Do
How Not to Cope with Government Failure
Well-Founded Pessimism
America: Past, Present, and Future
IQ, Political Correctness, and America’s Present Condition
The Barbarians Within and the State of the Union
Why Are Interest Rates So Low?
Vulgar Keynesianism and Capitalism
Estimating the Rahn Curve: Or, How Government Spending Inhibits Economic Growth
America’s Financial Crisis Is Now
The World Turned Upside Down
“We the People” and Big Government: Part I
“We the People” and Big Government: Part I (continued)
“We the People” and Big Government: Part 2 (first installment)

A Better Constitution

Here.

*     *     *

Related posts:
A New, New Constitution
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead

More about “Secession Made Easy”

Read “Secession Made Easy,” which addresses inter-State secession, that is, the annexation of a portion of one State by another State. Then consider the table below. It includes some moves not mentioned in the earlier post, and assesses the potential gains accruing to the GOP if parts of some States were shifted to neighboring States.

Secession made easy - table

The baseline is the current lineup of U.S. Senate seats, governorships, and State legislatures.  The potentially big gains for the GOP are found in the Senate. Those gains would be worth the (possible) loss of a single governorship, because the addition of nine GOP Senate seats would shift control of Congress to the GOP. (This assumes that the House remains indefinitely under GOP control for some years to come, which may be a heroic assumption.) Further, the GOP would continue to control about 3/5 of State legislatures — a big advantage when it comes to congressional redistricting.

In any event, some denizens of Blue States would become citizens of Red States — a prize in itself.

Secession Made Easy

It seems that the “Red” areas of several “Blue” States are agitating to secede from those States. It seems, also, that there is a way to secede that might pass legal scrutiny: the seceding portion of a State (the Red counties of Blue-dominated Maryland, for instance) hooks up with a more congenial State (West Virginia, for instance). Half a loaf certainly would be better than none if you’re a conservative in a conservative region of California, Colorado, Maryland, or Michigan — to name a few of the many possibilities.

The upshot of a half-a-loaf strategy with respect to secession would be … what? Some Red States would become Redder and some Blue States would become Bluer. Would the balance of political power be affected? Consider some possibilities:

  • California/Nevada — Northern California plus Nevada could push Nevada into Red territory. A plus for the GOP in the U.S. Senate and control of Nevada’s government.
  • Colorado/Kansas/Utah — Merging eastern Colorado into Kansas and western Colorado into Utah wouldn’t change the political landscape, but the ex-Coloradans would be happier.
  • Delaware/Maryland/Virginia/West Virginia — Two mergers here: southern Delaware and eastern Maryland into Virginia, western Maryland into West Virginia. Virginia would become more reliably Red; West Virginia, almost Deep Red. Pluses for the GOP in the U.S. Senate and control of the governments of Virginia and West Virginia.
  • Illinois/Ohio — Moving southern Illinois into Ohio would make Ohio more reliably Red.
  • Michigan/Wisconsin — If Wisconsin were to annex Michigan’s upper peninsula (and perhaps the northern part of the lower peninsula) it would become firmly Red. Perhaps a tossup, given Michigan’s occasional Reddish tinge, but the ex-Michiganders would be happier.

Those are the obvious possibilities; there may be others.

The problem with all of this, of course, is that Democrats will do the math and fiercely resist any such rearrangements.

But nothing venture, nothing gain. In other words, go for it!

Be sure to read the follow-up post, here.

Related posts:
How to Think about Secession
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Secession
The Interest-Group Paradox
Is Statism Inevitable?
Utilitarianism vs. Liberty
Fascism and the Future of America
Secession Redux
Negative Rights, Social Norms, and the Constitution
A New Cold War or Secession?
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
The Census of 2010: Bring It On
The Near-Victory of Communism
A Declaration of Independence
Tocqueville’s Prescience
First Principles
The Shape of Things to Come
The Real Burden of Government
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
The Illusion of Prosperity and Stability
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Deficit Commission’s Deficit of Understanding
The Bowles-Simpson Report
The Unconstitutionality of the Individual Mandate
The Bowles-Simpson Band-Aid
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Estimating the Rahn Curve: A Sequel
Constitutional Confusion
Reclaiming Liberty throughout the Land
More Evidence for the Rahn Curve
Secession, Anyone?
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
Obamacare and Zones of Liberty
Keynesianism: Upside-Down Economics in the Collectivist Cause
Secession for All Seasons
A New Constitution for a New Republic
A Zone of Liberty in the Making?
The Price of Government, Once More
America: Past, Present, and Future
Restoring Constitutional Government: The Way Ahead

A Human Person

A RERUN (WITH LIGHT EDITING) OF A POST AT MY OLD BLOG, FROM MAY 5, 2008

The ludicrous and (it seems) increasingly popular assertion that plants have rights should not distract us from the more serious issue of fetal rights. (My position on the issue can be found among these links.) Maverick Philosopher explains how abortion may be opposed for non-religious reasons:

It is often assumed that opposition to abortion can be based only on religious premises. This assumption is plainly false. To show that it is is false, one need merely give an anti-abortion argument that does not invoke any religious tenet, for example:1. Infanticide is morally wrong.
2. There is no morally relevant difference between abortion and infancticide.
Therefore
3. Abortion is morally wrong.

Whether one accepts this argument or not, it clearly invokes no religious premise. It is therefore manifestly incorrect to say or imply that all opposition to abortion must be religiously-based. Theists and atheists alike could make use of the above argument.

MP then links to a piece by Nat Hentoff, an atheist and Leftist. Hentoff writes, apropos Barack Obama and abortion, that

I admire much of Obama’s record, including what he wrote in “The Audacity of Hope” about the Founders’ “rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority … George Washington declined the crown because of this impulse.”

But on abortion, Obama is an extremist. He has opposed the Supreme Court decision that finally upheld the Partial-Birth Abortion Ban Act against that form of infanticide. Most startlingly, for a professed humanist, Obama — in the Illinois Senate — also voted against the Born Alive Infant Protection Act….

Furthermore, as “National Right to Life News” (April issue) included in its account of Obama’s actual votes on abortion, he “voted to kill a bill that would have required an abortionist to notify at least one parent before performing an abortion on a minor girl from another state.”

These are conspiracies — and that’s the word — by pro-abortion extremists to transport a minor girl across state lines from where she lives, unbeknownst to her parents. This assumes that a minor fully understands the consequences of that irredeemable act. As I was researching this presidential candidate’s views on the unilateral “choice” that takes another’s life, I heard on the radio what Obama said during a Johnstown, Pa., town hall meeting on March 29 as he was discussing the continuing dangers of exposure to HIV/AIDS infections:

“When it comes specifically to HIV/AIDS, the most important prevention is education, which should include — which should include abstinence education and teaching children, you know, that sex is not something casual. But it should also include — it should also include other, you know, information about contraception because, look, I’ve got two daughters, 9 years old and 6 years old. I am going to teach them first of all about values and morals.

“But if they make a mistake,” Obama continued, “I don’t want them punished with a baby.”

Among my children and grandchildren are two daughters and three granddaughters; and when I hear anyone, including a presidential candidate, equate having a baby as punishment, I realize with particular force the impact that the millions of legal abortions in this country have had on respect for human life.

And that’s the crux of the issue: respect for human life.

Thus I turn to a Peter Lawler’s “A Human Person, Actually,” in which Lawler reviews Embryo: A Defense of Human Life, by Robert P. George and Christopher Tollefsen:

The embryo, George and Tollefsen argue, is a whole being, possessing the integrated capability to go through all the phases of human development. An embryo has what it takes to be a free, rational, deliberating, and choosing being; it is naturally fitted to develop into a being who can be an “uncaused cause,” a genuinely free agent. Some will object, of course, that the embryo is only potentially human. The more precise version of this objection is that the embryo is human—not a fish or a member of some other species—but not yet a person. A person, in this view, is conscious enough to be a free chooser right now. Rights don’t belong to members of our species but to persons, beings free enough from natural determination to be able to exercise their rights. How could someone have rights if he doesn’t even know that he has them?…

Is the embryo a “who”? It’s true enough that we usually don’t bond with embryos or grieve when they die. Doubtless, that’s partly because of our misperception of who or what an embryo is. But it’s also because we have no personal or loving contact with them. We tend to think of persons as beings with brains and hearts; an embryo has neither. But personal significance can’t be limited to those we happen to know and love ourselves; my powers of knowing and loving other persons are quite limited, and given to the distortions of prejudice. Whether an embryo is by nature a “who” can be determined only by philosophical reflection about what we really know.The evidence that George and Tollefsen present suggests that there are only two non-arbitrary ways to consider when a “what” naturally becomes a “who.” Either the embryo is incapable of being anything but a “who”; from the moment he or she comes to be, he or she is a unique and particular being capable of exhibiting all the personal attributes associated with knowing, loving, and choosing. Or a human being doesn’t become a “who” until he or she actually acquires the gift of language and starts displaying distinctively personal qualities. Any point in between these two extremes—such as the point at which a fetus starts to look like a human animal or when the baby is removed from the mother’s womb—is perfectly arbitrary. From a purely rational or scientific view, the price of being unable to regard embryos as “whos” is being unable to regard newborn babies as “whos”….

As I say here,

abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

Most libertarians, alas, mimic “liberals” and “progressives” on the issue of abortion. But there are no valid libertarian arguments for abortion, just wrong-headed ones.

The Barbarians Within and the State of the Union

As empires die, the barbarians usually gather at the gates, preparing a final rush. Unfortunately our savages are already inside. They are in the public schools, the universities, and downtown in the cities. They make our movies, set social policy from afar, instill appropriate values in our children. They do not know that they are savages. They now rule us, and there is nothing we can do about it.

Except watch. Vast disasters make splendid theater. This one is going to be a doozy.

– Fred Reed (Nekkid in Austin, iUniverse, 2002)

Reed is right. He must be right because he agrees with me about America’s future. (See “Well-Founded Pessimism” and “America: Past, Present, and Future.”) Reed also agrees with me about the causes of that future.

Some would say that “we” have done it to ourselves. But that is wrong. The truth is that some of “us” have done it to the rest of “us.”

Who are the doers? Reed gets it partly right, but he (like most social observers) overlooks the “secret” ingredient: leftist lying and treachery. (Though he is alert and scathing about one of its powerful instruments: political correctness.*)

Leftists lie to themselves and to others. The purpose of these lies is to advance collectivism, and to do so at the expense of America’s economic and military security.

By collectivism, I mean not just the obvious things (e.g., government control of the economy, income redistribution). Collectivism also embraces forced egalitarianism, regardless of differences in ability, skill, and effort — and to the detriment of freedom of speech, freedom of association, and property rights.

As for the willingness (eagerness) of leftists to forgo economic and military security, consider just a few examples: It is the left that opposes free trade. It is the left that constantly calls for higher taxes on “the rich,” to punish success and deter growth-producing investments. It was the left that sniveled about Reagan’s “dangerous and provocative” arms buildup — the buildup that brought the USSR to its knees. It is the left that, since the “McGovern revolution” of 1972 has turned the Democrat Party into a party of military weakness and appeasement — appeasement of Soviet and Chinese Communism, of Islamic terrorism, and of any other “ism” but American patriotism.

Leftists lie to themselves (engage in magical thinking) in order to justify (to themselves and the gullible) their upside-down woldview. Thus, for example, they embrace the pseudo-sciences of climatology and macroeconomics, which justify costly and aggrandizing state action (e.g., limitations on the use of fossil fuels, the conscription of scarce resources by government in the name of “stimulus”). Perhaps the biggest lie that leftists tell themselves is that they really believe in collectivism and egalitarianism, when they patently do not.

Leftists lie to others — usually deploying the lies they tell themselves  — in order to advance egalitarian collectivism and weaken America. There are the straightforward lies about policy matters as the need to combat man-made global warming by adopting expensive and inefficient “solutions” (think “green” energy, for example), and the effectiveness of “stimulus” spending. Beyond that, there are hoaxes and the Big LIe about Communism, the effects of which burden America more than two decades after the purported demise of Communism. (Note to reader: Hitler, inventor of the Big Lie, was a leftist — not a demented conservative, as later Big Liars would have you believe.)

Before I elaborate on the Big Lie and its accompanying treachery, I will set the stage by say a bit about a kind of “little lie” that appeals to leftists: the hoax.

What kind of political gain accrues to a hoax? Sympathy for a favored “minority group” — usually blacks, women, and persons suffering from real or feigned gender confusion. Beyond sympathy, of course, there is the hope of favored treatment through changes in social norms, forced and reinforced by codes of conduct, and statutes. Favored treatment means more-than-equal treatment for a “minority group” and less-than-equal treatment for persons not in the “minority group” — for example, the erosion of rights (property, speech, and association), and the loss of jobs, promotions, and university admissions.

Prominent, politically inspired/exploited hoaxes of recent times include:

  • The “rape” of Tawana Brawley, a black female
  • The fatal beating of Matthew Shepard, supposedly because of his homosexuality (more here)
  • The “rape” of a black female members of Duke University’s lacrosse team

What about the Big Lie? Well, the aim is the same: to twist the truth and advance the left’s domestic agenda:

the repudiation of ordered liberty of the kind that arises from evolved social norms, and the replacement of that liberty by sugar-coated oppression. The bread and circuses of imperial Rome have nothing on Social Security, Medicaid, Medicare, Obamacare, and the many other forms of personal and corporate welfare that are draining America of its wealth and élan. All of that “welfare” has been bought at the price of economic and social liberty (which are indivisible). (For a broad enumeration, see this post.)

In foreign affairs, the left’s agenda is the erosion of America’s military and economic might, because (insert one or more of the following morally relativistic-politically “realistic” positions):

  • No other country [at present] poses a military challenge to the U.S. [As if this were a permanent condition which would survive prolonged decimation of America's armed forces.]
  • it is wrong for America to attack other countries. [Always? Even when those other countries are hotbeds of terrorism?]
  • Other countries (e.g., Iran) ought to have nuclear weapons if they want them; after all, the U.S. has them. [Well, why didn't we offer the A-bomb to Japan instead of using it to end World War II and save millions of lives?]
  • America is nothing special and doesn’t deserve to be stronger and richer than other countries. [Easily said when you are protected by America's strength and benefit from its quasi-free and still potent economic system, but would you really weaken and impoverish America -- and yourself -- just to be "no better" than, say, a sub-Saharan country?]
  • “We” must rely in international institutions instead of being the word’s policeman and/or bully. [Rely on 'international institutions' even if they are controlled by states that wish ill on America, states that promote ideals other than America's (professed) ones of liberty and equality of opportunity.
  • The inevitable "convergence" of Communism and capitalism will lead America down the path of socialism and accommodation with the USSR, so we might as well relax and enjoy it.

Reasonable people may disagree about the necessary size and shape of America's defenses. Reasonable people may disagree about the wisdom of a particular military operation. Reasonable people may disagree about the threat posed by Iran. But reasonable people will not hold the preceding convictions as absolutely and fervently as they are held by leftists, without regard for the facts or the consequences for the liberty and prosperity of Americans.

For decades, the left indulged in one of its biggest Big Lies -- a lie perpetrated with the clear purpose of fostering collectivism and military weakness -- anti-anti-Communism:

... Whittaker Chambers experienced this [Big Lie] at its punishing extreme. Chambers, probably the most famous American ex-Communist ever, was a former courier for Soviet military intelligence, subsequently an editor at Time magazine, and, in passing, curiously, the English translator of the 1923 Austrian novel Bambi, which became the 1942 Disney cartoon. His exceedingly wise decision to retain hard evidence attesting to his espionage work in the 1930s helped convict, most sensationally, Alger Hiss— the Ivy-educated, well-connected former State Department official and progenitor of the United Nations, president of the Carnegie Endowment for International Peace, and all-around poster boy of the Liberal Establishment. Starting in 1950, Hiss served four years in jail for perjury charges related to Soviet espionage.

Then what happened? Did a thankful President Truman crown Chambers in laurels and congratulate him on behalf of a grateful nation for exposing a Communist conspiracy metastasizing at the highest levels of the federal government?

Never has a simple “no” been less adequate…. At one point in his testimonial [Witness], Chambers encapsulates the physics of anti-anti-Communism this way: “I had been warned repeatedly that the brunt of official wrath was directed, not against Alger Hiss as a danger, but against me for venturing to testify to the danger.”

It bears restating: Officialdom was enraged not by the danger posed by Hiss, a Soviet military intelligence agent “continuously since 1935,” but by Chambers for testifying to the danger….

… When did anti-Communism itself— the philosophical and political drive against state domination of the individual— become a radioactive inheritance of perceived bigotry and mass hysteria to be passed down, gingerly, generation to generation? …

The so-called McCarthy Era is the obvious place to search for answers, since the narrative we can all recite tells us that the Red-hunting Republican senator from Wisconsin was himself singlehandedly responsible for the evisceration of ideological opposition to Communism— anti-Communism— rendering said anti-Communism into a kind of disease. The remedy was said to be a steadying dose of anti-anti-Communism, despite the often heavy pro-Communist side effects. McCarthy accomplished all of this, the same narrative goes, with his crude zealotry and wild overreach, hectoring and destroying American innocents who had the misfortune to be dragged before his investigatory Senate committee for nothing. “Name one Communist or Soviet agent ever identified by McCarthy,” goes the perpetual challenge to this day, regardless of evidence from both Soviet and American archives that corroborate FBI reports, sworn testimonies, and other facts amassed in support of innumerable McCarthy investigations into the Soviet penetration of the federal government…. (Diana West, American Betrayal: The Secret Assault on Our Nation’s Character, St. Martin’s Press, 2013**)

What was the Big Lie of anti-anti-Communism? The story line went like this: Communism stands for a noble ideal (regardless of what Communism invariably looks like in practice), and the Soviet Union’s expansionism is merely defensive. Any criticism of the Soviet Union — including criticism of its espionage and infiltration of the U.S. government — is therefore bad. Anti-Soviet (anti-Communist) views must therefore be discredited.

This story line was advanced by Communist agents working inside the U.S. government, with the help of the usual suspects: academics, show-biz types (with a few notable and ostracized exceptions), and politicians and bureaucrats — many of whom agreed with the story line and others of whom sought election and advancement by placating the left and, at the same time, adopting the “sophisticated” posture of moral relativism and political realism.

By 1995, when the collectivist cause needed no special protection — having advanced from FDR’s New Deal to LBJ’s Great Society, and having been consolidated in the years since — the U.S. government finally released materials amassed by the Venona project,

a long-running secret collaboration of the United States and United Kingdom intelligence agencies involving cryptanalysis of messages sent by intelligence agencies of the Soviet Union, the majority of them during World War II….

During the initial years of the Cold War, the Venona project was a source of information on Soviet intelligence-gathering activity that was directed at the Western military powers. Although unknown to the public, and even to Presidents Franklin D. Roosevelt and Harry S. Truman, these programs were of importance concerning crucial events of the early Cold War….

… Sometime in 1945, the existence of the Venona program was revealed to the Soviet Union by the NKVD agent and United States Army SIGINT analyst and cryptologist Bill Weisband….

To what extent the various individuals were involved with Soviet intelligence is a topic of dispute. While a number of academics and historians assert that most of the individuals mentioned in the Venona decrypts were most likely either clandestine assets and/or contacts of Soviet intelligence agents, others argue that many of those people probably had no malicious intentions and committed no crimes [emphasis added].

Well, of course, “many of those people” were innocent. But many were not. Among the many non-innocents:

And that’s just a sample of a long list of known Soviet agents. Did you notice the presence on the list of the Rosenbergs, as well as a large number of government officials (Alger Hiss among them)? Protestations and “proof” of the innocence of the Rosenbergs, Hiss, and others were key components of the Big anti-anti-Communist Lie.

America’s hollow victory in the Cold War brought with it the end of anti-Communism and anti-anti-Communism as political preoccupations. But the Big Lie lives on, in the service of a collectivist and weak America. How could that have happened if America “won” the Cold War? The bitter truth is that every living person of influence in the U.s. was raised during the reign of the Big (anti-anti-Communist) Lie or in the succeeding generations that were (and are) dominated “educators” who persist unto this day in spreading  the gospel of collectivism at home and weakness abroad. (It is not a sign of strength to kill a few terrorists at long distance with armed drones or to back with words and deeds the efforts of anti-American insurgents aiming to replace one kind of tyranny with their own.)

The lamentable truth is that America’s political elites, their enablers in the academy and the media, their financial backers, and their constituents and dupes (the “masses”) have together succeeded in yoking America with “soft” despotism:

Soft despotism is simply a more polite term than fascism (or socialism) for pervasive government control of our affairs:

Soft despotism is a term coined by Alexis de Tocqueville describing the state into which a country overrun by “a network of small complicated rules” might degrade. Soft despotism is different from despotism (also called ‘hard despotism’) in the sense that it is not obvious to the people. Soft despotism gives people the illusion that they are in control, when in fact they have very little influence over their government. (Source: Wikipedia.)

Soft despotism is “soft” only in that citizens aren’t dragged from their houses at night and executed for imaginary crimes against the state — though they are hauled into court for not wearing seatbelts, for smoking in bars, and for various other niggling offenses to the sensibilities of nanny-staters.

Despite the absence of arbitrary physical punishment, soft despotism is despotism, period. It can be nothing but despotism when the state holds sway over your paycheck, your retirement plan, your medical care, your choice of associates, and thousands of other details of your life — from the drugs you may not buy to the kind of car you can’t drive, from where you can build a house to the features that your house must include.

“Soft despotism,” in other words, is too soft a term for the regime under which we live. I therefore agree with Tom Smith: “Fascism” is a good descriptor of our present condition, so I’ll continue to use it.

Consider Obamacare, which — unlike Hillarycare — may survive:

When Obama was campaigning on behalf of his health care law one mantra was repeated ad nauseam: If you like your current plan, you can keep it. To put it gently, this hasn’t turned out to be the case, as more and more employers are opting to drop health coverage for their employees, pushing them onto the insurance exchanges…. The Wall Street Journal reports:

Instead of subsidizing retiree health premiums directly, IBM will give retirees an annual contribution via a health retirement account that they can use to buy Medicare Advantage plans and supplemental Medicare policies on the exchange, as well as pay for other medical expenses. Retirees who don’t enroll in a plan through Extend Health won’t receive the subsidy. [...]

Few employees can now count on big companies to provide retirement health care. Only 28% of large companies that offer health benefits to employees offered retiree coverage in 2013, down from 34% in 2006 and 66% in 1988, according to a 2013 survey by the Kaiser Family Foundation.

This is huge. Far from being a status quo law, Obamacare has become a weapon of mass destruction against traditional employer plans…. (“Obamacare Is Destroying Employer-Based Health Plans,” Via Media, September 9, 2013)

Anyone who knew anything about the likely effects of Obamacare knew that it was sold with this purpose in mind: To undermine employer-based plans and, thus, to garner support for single-payer (i.e., government-provided) health insurance. That, in turn, would practically complete government’s takeover of health care in the U.S., given its control of everything else involved in health care through regulation and the power over providers that accompanies Medicare and Medicaid. (This, too, probably shall not pass.)

And healthcare is but one aspect of an economy that has been commandeered by government spending and regulation, in the name of and for “the people.” For it is well known that most Americans oppose government spending and regulation, in the abstract, while supporting those very things when push comes to shove. (See, for example, this and this.)

Not that the state of the economy will matter much when America is no longer able to effectively defend its citizens and their legitimate overseas interests:

… The fate of the free world no longer rests with the US. It now rests with Putin. He and the mullahs in Iran, presented with the spectacle of the preening narcissist in the White House gazing in rapt adoration at his own reflection, are surely laughing fit to bust.

And why shouldn’t the First Narcissist preen? For he has achieved precisely what he wanted, his true goal that I described in this blog when Obama first ran for President: to extend the reach of the state over peoples’ lives at home, to emasculate the power of America abroad, and to make the free white world the slave of those he falsely characterised as the victims of that white world’s oppression…. (Melanie Phillips, “Putin Checkmates America,” Melanie’s Blog, September 15, 2013)

(Norman Podhoretz delivers a more elaborate version of Phillips’s thesis at “Obama’s Successful Foreign Failure,” The Wall Street Journal, September 8, 2013.)

And the Big Lie continues, transmogrified from anti-anti-Communism to anti-anti-Islamism:

[S]hortly after 9/11, a time when some among us were beginning to realize that what we were all hearing 24/7 on cable, on NPR, in The New York Times, from all the experts … was out of sync with what we were watching before our eyes. In other words, the narrative—“ Islam is peace”— was not supported by the evidence: Islam is violence. Islam is slavery (Sudan). Islam is forced conversion (Egypt). Islam is child rape (Iran, Afghanistan, Saudi Arabia, South Yorkshire, too). Islam is pillage (Somalia). Islam is religious cleansing (Iraq). Islam is death for apostasy (Swat Valley, Harvard University, too8). Islam is censorship (everywhere). Islam is conquest (Cyprus, Israel, Kosovo, Philippines, the 751 government-ID’d no-go zones of France). Such fact-based observations, of course, trigger charges of that sin of sins—“ Islamophobia” (“ racism” being its domestic twin)— but does mere name-calling (“ Islamophobe”) make these serious crimes and their real victims go away? In our world, yes. Over nearly a century of Big Lies we have learned to discount fact and disable logic. As in a frustration dream, the crimes, the victims, and their suffering vanish in today’s magic word, “Islamophobia.” What remains— slanderous allegations of “prejudice,” permanent brands of “bias”— triggers the revulsion reflex in the postmodern brain, still programmed to be vigilant against racism, lynch mobs, the KKK, and the like.

Extant or not, functional or not, these usually faux stimuli create outrage Islam exploits as “Islamophobia.” … This pattern is very old. In pre-McCarthy times, the all-powerful word that stopped the logic process cold was “Red-baiter.” …

… Islam, we are told, has nothing to do with anything bad. How could it? Islam means “peace,” said the forty-third president of the United States. No, in fact, Islam means “submission.” There’s a huge difference, and it explains why Islam celebrated the fall of the Twin Towers in Gaza, Kabul, and Queens. Dhimmitude, already evident in our society, goes a long way to explain why we didn’t dare show that we had noticed.

What we were witnessing was the marshaling forces of the latest, greatest Big Lie…. I saw how … this Big Lie was actively pressed on us by cadres of agents of Islam and their own armies of useful fools: members of the Muslim Brotherhood fobbed off as advocates of a pluralistic, American Islam, the Iran Lobby, Saudi princelings, the international Islamic bloc now known as the Organization of Islamic Cooperation (OIC), the Bush administration, the Obama administration, practically anyone on a TV soundstage. All “reasonable people,” they peddled the same Big Lie: Islam is a religion of peace.

The history of the decade that followed, then, became a stuttering story of mongrel words and phrases (from “Islamofascism” to “violent extremism”) and morphing suffixes (“ ist,” “ism”). It was a time of now-you-see-it, now-you-don’t terminology (jihad, jihadist, sharia, mujahideen, shahid, taqqiyya, jizya, caliphate). Apt phrases became verboten (“ Islamic terrorism,” “Muslim violence,” “Islamic jihad”), as did concepts uniquely or characteristically Islamic: religious supremacism, censorship, slavery, pederasty, “honor killings,” “grooming,” and totalitarianism, among others. We may have intuited that “apostasy” did not go out with Galileo, and that beheadings did not end with the French Revolution, but  … Islam is a religion of peace. The real threat, we decided to believe, or thought we had no choice but to believe (or just didn’t think), is “violent extremism.”…

Limiting our brains to this empty phrase, however, has done extreme violence to our thought processes…. After all, if the problem is “violent extremism,” what’s the problem? Have a nice flight….

Islam is the totalitarian threat of today. However, because we continue the “deceit and double-speak” we adopted in response to Communism, we are unable to deal with the new threat— the new Communism of today. We deal with Islam the same way we dealt with Communism: Having been subverted and undermined, we apologize and converge.

As [Geert] Wilders asked, What is wrong with modern Western man? Did something happen to him? I think the answer is yes: Communism happened to him. Solomon aside, there was something novel under the Communist sun; under the shorter-lived Nazi sun, too. In his 1998 book Century of Horrors: Communism, Nazism, and the Uniqueness of the Shoah, Alain Besançon explains what that was: “Communism and Nazism set out to change something more fundamental than mores— that is, the very rule of morality, of our sense of good and evil. And in this, they committed acts unknown in prior human experience.”

And in this, our world was transformed….

Where “good” and “evil” are old-fashioned and laughable (and bracketed by quotation marks), moral relativism takes hold— Lenin’s universal legacy. Solzhenitsyn wondered what would happen next: “But if we are to be deprived of the concepts of good and evil, what will be left? Nothing but the manipulation of each other.”

The manipulation of each other through the manipulation of narratives….

… All these decades later, no one wants information or to open their eyes to the Muslim Brotherhood’s self-described “civilization jihad,” either. It hurts our heads. It exhausts our limited lexicon of ideology…. (Diana West, op. cit.)

*     *     *

This year marks the 80th anniversary of the ascendancy of FDR, his “Brain Trust,” and the New Deal. It is an anniversary to be mourned, not celebrated. Mourned because it means that Americans’ prosperity and liberty have been eroded and imperiled by eight decades of leftist lies and treachery.

Thus the land of the free and the home of the brave has become the land of the handout-seeker and the home of the appeaser. That is the unfortunate state of the Union in 2013.

*     *     *

Related reading:
Arnold Kling, “Our New Technocratic Masters,” Askblog, February 3, 2013
Victor Davis Hanson, “The Glue Holding America Together,” RealClearPolitics, June 28, 2013
Victor Davis Hanson,”Liberal Apartheid,” RealClearPolitics, July 8, 2013
M. Stanton Evans, “In Defense of Diana West,” cnsnews.com, September 13, 2013

*     *     *

Related posts:
The Course of the Mainstream
FDR and Fascism
An FDR Reader
The People’s Romance
Intellectuals and Capitalism
Fascism
Fascism with a “Friendly” Face
The Interest-Group Paradox
Parsing Political Philosophy
Is Statism Inevitable?
Inventing “Liberalism”
The Shape of Things to Come
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
The Near-Victory of Communism
Tocqueville’s Prescience
Accountants of the Soul
Invoking Hitler
Is Liberty Possible?
The Left
Our Enemy, the State
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
The Destruction of Society in the Name of “Society”
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Are You in the Bubble?
Where We Are, Economically
The Economic Outlook in Brief
Obamanomics: A Report Card
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
Genetic Kinship and Society
Well-Founded Pessimism
Is There Such a Thing as Society
Defense as an Investment in Liberty and Prosperity
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
America: Past, Present, and Future
Defending Liberty against (Pseudo) Libertarians
The Fallacy of the Reverse-Mussolini Fallacy
__________
* From Fred Reed (op. cit.):

Feminists wanted congress to pass a vast program of funding for every left-wing cause that incited enthusiasm in the sterile nests of NOW. They called it the Violence Against Women Act, and men deferentially gave it to them. Of course to vote against it, no matter what it actually said (and almost no one knew) would have been to seem to favor violence against women. A law to exterminate orphans, if called the Domestic Violence Prevention Act, would pass without demur.

There followed yet more male deference to female desires. When women wanted to go into the military to have babies, or a Soldier Experience, men couldn’t bring themselves to say no.

When the women couldn’t perform as soldiers, men graciously lowered standards so they could appear to. It was the equivalent of helping a woman over a log in the park, the legal and institutional parallel of murmuring, “Don’t worry your pretty little head about a thing.”

On and on it went. The aggregate effect has been that women have gained real power, while (or by) managing in large part to continue to exact deference and, crucially, to avoid the accountability that should come with power. A minor example is women who want the preferential treatment that women now enjoy, and yet expect men to pay for their dates. In today’s circumstances, this is simple parasitism.

Today men are accountable for their behavior. Women are not. The lack of accountability, seldom clearly recognized, is the bedrock of much of today’s feminist misbehavior, influence, and politics. Its pervasiveness is worth pondering.

** West’s book is controversial — to put it mildly — even among conservatives. Key charges and counter-charges about American Betrayal can be found here:

Ronald Radosh, “McCarthy on Steroids,” FrontPage Mag, August 7, 2013

John Earl Haynes and Harvey Klehr, “Was Harry Hopkins a Soviet Spy?,” FrontPage Mag, August 16, 2013

Diana West, “Published: The Rebuttal in Three Parts [links provided],” dianawest.net, September 10, 2013

West’s style — breathless, repetitive, discursive, often logic-challenged — should not blind you to the essence of her argument, which I have tried to capture in the quotations from her book. Read American Betrayal, read the entries in the debate, consult your own knowledge of America’s past 80 years (if you have much knowledge of those times), and judge for yourself. But don’t commit what I call the fallacy of particularism, which is to discredit an entire thesis because the supporting argument is incorrect in some particulars. (That’s how O.J. got off: “If it [a glove left near the murder scene] doesn’t fit, you must acquit.”) West may not be right about every detail; she has, in my estimation, got the big picture right. For example, even if West is wrong in her assertion that FDR’s right-hand man, Harry Hopkins, was a Soviet agent, she is right about his baleful influence on the foreign and domestic policies of the U.S. government. And his influence lives on.