Constitution

Has America Always Been Leftist?

Dr. John J. Ray, writing at Dissecting Leftism, enraged some Americans with two recent posts about America and leftism. I’m grateful to Dr. Ray for publishing, in a subsequent post, a message that I sent to him about the two posts in question. Herein, I elaborate on the points that I made in my message to Dr. Ray.

In “America Has Always Been Leftist,” Dr. Ray asserts the following:

As most Americans learn around the time of Thanksgiving, America was founded by fanatical communists.  They forbad [sic] private ownership of land and insisted that all produce be shared communally.  If that’s not communism, nothing is.  They were such fanatics that a third of them had to starve to death before they decided that communism wasn’t such a good idea and went back to the way things had always been done in stodgy old England.

So what should we expect of a nation dominated by the descendants of fanatical communists?  What we should expect is exactly what we actually got, I submit.

But before I get to that, let me  ensure complete clarity about what the core of Leftism is.  The content of Leftism changes from time to time.  Before WWII, Leftists world wide were energetic champions of eugenics, for instance.  Leftists now abhor it.  So what is constant in Leftism?  Anger.  Leftists in all eras are so dissatisfied with the society in which they live that they want sweeping changes to it. And they thirst for power to achieve that.  That is Leftism.

Pace Dr. Ray, it is well known that the “fanatical communists” of Plymouth Colony quickly abandoned their experiment in communism; for example, Jerry Bowyer writes:

…America was founded by socialists who had the humility to learn from their initial mistakes and embrace freedom.

One of the earliest and arguably most historically significant North American colonies was Plymouth Colony, founded in 1620 in what is now known as Plymouth, Massachusetts. As I’ve outlined in greater detail here before (Lessons From a Capitalist Thanksgiving), the original colony had written into its charter a system of communal property and labor.

As William Bradford recorded in his Of Plymouth Plantation, a people who had formerly been known for their virtue and hard work became lazy and unproductive. Resources were squandered, vegetables were allowed to rot on the ground and mass starvation was the result. And where there is starvation, there is plague. After 2 1/2 years, the leaders of the colony decided to abandon their socialist mandate and create a system which honored private property. The colony survived and thrived and the abundance which resulted was what was celebrated at that iconic Thanksgiving feast….

It is, moreover, an exaggeration to say that America is “a nation dominated by the descendants of fanatical communists.” First, as I’ve just pointed out, the inhabitants of Plymouth Colony were hardly fanatical. If they had been, they would have chosen the sure impoverishment (and probable death) of communism over the relative prosperity (and liberty) that came their way when they abandoned their infatuation with communism.

Second, only a small minority of today’s Americans — even of today’s white Americans — can count themselves as “full blooded” descendants of the inhabitants of Plymouth Colony or other early settlers might also have harbored socialistic delusions. There have been too many immigrants from continental Europe and too much “miscegenation” for that to be true.

Third, and fundamentally, it is meaningless to generalize about “Americans,” as I’ve explained at length here. There are and have been individual Americans of many political persuasions, most of them confused and contradictory.

That said, I do agree, generally, with Dr. Ray’s characterization of the motivations underlying the War of Independence. In his next post, “Has America Always Been Leftist?,” Dr. Ray says this:

I did learn something very important from [the critics of "America Has Always Been Leftist"].  It was vividly brought home to me how impressive fine words are to most people.  When even patriotic American conservatives can be taken in by them, it shows why Leftists have so much influence. Leftists are nothing but fine words.  To me fine words are only provisionally important.  They have to be backed up by deeds and it is the deeds that matter.

An excellent example of how fine words impress even conservatives  is the preamble to the Declaration of Independence.  It is full of fine words and noble sentiments.  Most political documents are.  Stalin’s Soviet constitution also was a high-minded document proclaiming all sorts of rights for Soviet citizens  – rights which were denied in fact.

So once you look past the grand generalizations of the Declaration’s introduction and get to the nitty gritty of what the Yankee grandees really wanted fixed, you see that it is very mundane, if not ignoble.  What was really bothering them was restrictions on their powers to legislate.  They wanted more laws, not less!   Very Leftist.

And from THAT starting point you can see why the war was fought and for whose benefit.  The grandees concerned had a lot of influence and were good at fine talk so they could muster an army — and they did.  And who benefited from the war?  Was it the poor farmers and tradesmen who died as foot-soldiers in it?  No way!  It was the grandees who started the war.  They emerged with exactly what they wanted:  More power.

I am sorry if that account sounds offensive to people who still believe the original propaganda, but if you ignore the fancy talk and just look at the facts, that is what happened.

Dr. Ray’s sweeping use of “Leftist” aside, his main point is well taken. I made a similar observation in response to a post by Timothy Sandefur, who was then guest-blogging at The Volokh Conspiracy. Sandefur, writing about his book The Conscience of the Constitution, asserted that “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.” I responded:

Did they, really? All of them, including the slave owners? Or did they 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 all about? The Constitution simply moved some of the power toward the national capital, mainly for the conduct of foreign policy and trade. Despite that, the Constitution was a “States’ rights” document, and remained that way until the ratification of Amendment XIV, from which much anti-libertarian mischief has emanated.

In response to Sandefur’s next post, I wrote:

Why can’t you [Sandefur] just admit that the Declaration of Independence was a p.r. piece, penned (in the main) by a slave-owner and subscribed to by various and sundry elites who (understandably) resented their treatment at the hands of a far-away sovereign and Parliament? You’re trying to make more of the Declaration — laudable as its sentiments are — than should be made of it….

In sum, the War of Independence isn’t all that it’s cracked up to be.

And there’s no doubt that liberty suffered in the long run as a result of the North’s victory in the Civil War. I return to Dr. Ray’s “America Has Always Been Leftist,” where he says this:

“Only” half a million men died [in the Civil War].  And for what?  EVERY other country on earth abolished slavery without the need for a war.  Does that not tell us something?  It should.  In his famous letter to Horace Greeley [link added], Lincoln himself admitted that slavery was not the main issue.  The issue was the dominance of central government.  V.I. Lenin call your office.  Lincoln didn’t call it “dominance of central government”, of course.  He called it “the union” but the result is the same.

And just about everything Lincoln did was without a shred of constitional justification and in fact breached the constitution.  Hitler at least had the grace to get an “enabling act” passed by the German parliament.  Lincoln just marched on regardless. He destroyed the liberty of the press (there goes your first amendment) and locked up thousands of war opponents (there goes your 4th amendment).  But most centrally, Lincoln’s whole enterprise was a defiance of the basic American constitutional dispensation that the states are sovereign, not the federal government.  Lincoln turned that on its head.  The feds now became the main source of power and authority.  There is no doubt that Lincoln talked a good talk.  He even used to persuade me once.  But his deeds reek of Fascism.

A good example of the large gap between his deeds and words is that masterpiece of propaganda, the Gettysburg address.  Goebbels admired it for good reason.  In case anybody hasn’t noticed, Lincoln claimed that his war was to ensure “government of the people, by the people, for the people” — which was exactly what he had just denied to the South!  Only Yankees are people, apparently.  Hitler thought certain groups weren’t people too.

Overwrought? Perhaps, but if Lincoln wasn’t a left-statist, he at least set an example for extra-constitutional activism that inspired Theodore Roosevelt’s hyper-activism (e.g., see this and this). TR, of course, set an example that was followed and enlarged upon by most of his successors, unto the present day.

Another anti-libertarian legacy of the Civil War is the false belief that it “proved” the unconstitutionality of secession. Balderdash! Secession is legal, Justice Scalia’s dictum to the contrary notwithstanding. (See this, this, and this, for example.) And the ever-present threat of secession might have helped to keep the central government from overstepping its constitutional bounds.

I must conclude, however, that the American Revolution and Civil War have little to do with “left” (or “right”) and much to do with human venality and power-lust, which are found in persons of all political persuasions.

The genius of the Constitution was that it provided mechanisms for curbing the anti-libertarian effects of venality and power-lust. The tragedy of the Constitution is that those mechanisms have been destroyed. If Dr. Ray were to say that Americans have gradually lost their liberty through successive and cumulative violations of the Constitution, I would agree with him

And if Dr. Ray were to say that Americans have become the captives of a leftist state, and are likely to remain so, I would agree with him.

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Related posts:
FDR and Fascism
The Modern Presidency: A Tour of American History
An FDR Reader
The People’s Romance
Secession
The Near-Victory of Communism
A Declaration of Independence
Tocqueville’s Prescience
Invoking Hitler
The Left
The Constitution: Original Meaning, Corruption, and Restoration
I Want My Country Back
Our Enemy, the State
The Left’s Agenda
The Meaning of Liberty
The Southern Secession Reconsidered
The Left and Its Delusions
Burkean Libertarianism
A Declaration and Defense of My Prejudices about Governance
Society and the State
Why Conservatism Works
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
A Contrarian View of Universal Suffrage
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
Conservatism as Right-Minarchism
“We the People” and Big Government
Parsing Political Philosophy (II)
How Libertarians Ought to Think about the Constitution
Romanticizing the State
Libertarianism and the State

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.

*     *     *

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

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.

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.

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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.

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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”

The Social Animal and the “Social Contract”

Here we go again, into “all men are brothers” territory:

“Morality can do things it did not evolve (biologically) to do,” says [Joshua] Greene [author of Moral Tribes: Emotion, Reason, and the Gap between Us and Them]. How can it do this? By switching from the intuitive “automatic mode” that underpins our gut reactions to the calculating, rational “manual mode”. This, for Greene, means embracing utilitarianism, “the native philosophy of the manual mode”. Utilitarianism takes the idea that “happiness is what matters, and everyone’s happiness counts the same”, generating the simple three-word maxim, “maximise happiness impartially”.

Greene is not the first to think that he has found “a universal moral philosophy that members of all human tribes can share” and that those who disagree are simply not being rational enough. Many a philosopher will raise an eyebrow at his claim that “the only truly compelling objection to utilitarianism is that it gets the intuitively wrong answers in certain cases”.

At least one strong objection is suggested by what Greene himself says. He knows full well that the kind of absolutely impartial perspective demanded by utilitarianism – in which the interests of your own child, partner or friends count for no more than any others – “is simply incompatible with the life for which our brains were designed”. Greene takes this as a flaw of human beings, not his preferred moral theory. But when someone, for example, dedicates a book to his wife, as Greene does, this does not reflect a failure to be appropriately objective. A world in which people showed no such preferences would be an inhuman, not an ideal, one. A morality that values human flourishing, as Greene thinks it should, should put our particular attachments at its core, not view them as “species-typical moral limitations” to be overcome.

That’s an excerpt of Julian Baggiani’s commendable review of Greene’s book and two others (“The Social Animal,” FT.com, January 3, 2014).

Greene makes two errors. First, he assumes that it’s wrong to prefer those who are closest to one, geographically and by kinship, to those who are farther away. Second, he assumes that happiness can be added, and that what should matter to a person is not his happiness but the sum of all the happiness in the world. The errors are so obvious that I won’t dwell on them here. If you want to read more about them, start with “Liberalism and Sovereignty,” “Inside-Outside,” “Modern Utilitarianism,” “The Social Welfare Function,” and “Utilitarianism vs. Liberty.” And by all means read “The Fallacy of Human Progress,” which addresses Steven Pinker’s rationalistic thesis about overcoming human nature (The Better Angels of Our Nature: Why Violence Has Declined).

Yes, human beings are social animals, but human beings are not “brothers under the skin,” and there is no use in pretending that we are. Trying to make us so, by governmental fiat, isn’t only futile but also wasteful and harmful. The futility of forced socialization is as true of the United States — a vast and varied collection of races, ethnicities, religions, and cultures — as it is of the world.

Despite the blatant reality of America’s irreconcilable diversity, American increasingly are being forced to lead their lives according to the dictates of the central government. Some apologists for this state of affairs will refer to the “common good,” which is a fiction that I address in the third, fourth, and fifth of the above-linked posts. Other apologists like to invoke the “social contract,” another fiction that Michael Huemer disposes of quite nicely:

[I]t is often said that the government derives its powers from a “social contract,” whereby the people have granted these special powers to the government. The only problem with this theory is that it is factually false—I have not in fact agreed to have a government, to pay taxes, or to obey the government’s laws.

A number of suggestions have been made as to how, despite my protestations to the contrary, I really have agreed to all those things. Here I will just mention one, because it is the one most often heard in conversation. This is the suggestion that I have “implicitly” agreed to have a government merely by residing in the government’s territory. (“If you don’t want a government, simply move to Antarctica!”) Very briefly, the problem with this suggestion is that it presupposes that the state owns all the territory over which it claims jurisdiction, or that for some other reason it has the right to exclude people from that area. But there is no way to establish such a right on the part of the state, unless one has already shown that the state has legitimate authority. This therefore cannot be presupposed in an argument designed to establish the state’s authority. In this case, the statist’s claim seems analogous to the leader of a protection racket claiming that his victims have voluntarily agreed to pay him protection money, merely by living in their own houses. There are other ways in which social contract enthusiasts claim that we have accepted the social contract, but as I explain in the book, each of them falls to equally serious objections, which show that the social contract does not come close to satisfying the generally accepted principles of real, valid contracts.

Another popular suggestion is that, in democratic nations (about half the world today), the democratic process confers authority on the government. The motivation behind this view is initially puzzling. Recall that the problem is to explain why the state may undertake actions that would be considered rights violations if anyone else were to perform them. Typically, if some type of action violates someone’s rights—for instance, theft, kidnapping, or murder—the action will not be converted into an ethically permissible, non-rights-violating one if a larger number of people support the action than oppose it. If you’re in a group of friends, and five of them decide they want to rob you, while only three oppose robbing you, this does not make it ethically permissible to rob you. Similarly, even if every law were directly authorized by a popular referendum of everyone affected by the law, it is unclear why this would render legitimate a law that would otherwise have been a rights violation. Matters are only more problematic in a society in which a minority of people vote, and they vote merely to select representatives who may or may not keep their promises, and may or may not do what their supporters wanted.

But doesn’t the government have to coerce us in the ways that it does in order to maintain itself in existence, so that it can provide law and order? And without government, wouldn’t society degenerate into a constant war of everyone against everyone? The first thing to note about this argument is that it could at most justify a tiny minority of all the powers claimed by any modern state. Perhaps the government must make laws against violence and theft and provide a court system to adjudicate disputes, in order to prevent a Hobbesian war of all against all. But why must the government control what drugs you may put into your body, what wages you may pay your employees, how much wheat you may grow on your farm, and whether you buy health insurance? Why must they subsidize agribusiness, send rockets to Mars, fund the arts, provide college loans, and run their own school system? The question is not, “Why are those programs beneficial?” The question is, “How are those programs justified by the threat of the Hobbesian war that would supposedly result from anarchy?”

Granted, sometimes it is necessary to use coercion to prevent some disaster from occurring. But having done so, one is not then ethically permitted to continue using coercion beyond the minimal amount necessary to prevent that disaster. If we really stand in danger of some sort of all-out Hobbesian war, then the state would be justified in employing the minimum coercion necessary to prevent the state of war from occurring. This would not justify their continuing to employ coercion whenever it strikes their fancy, or whenever they think they can achieve some benefit by doing so. (“The Problem of Authority,” Cato Unbound, March 4, 2013)

A point that Huemer doesn’t make in his essay is to compare Americans with the “boiling frog“:

The premise is that if a frog is placed in boiling water, it will jump out, but if it is placed in cold water that is slowly heated, it will not perceive the danger and will be cooked to death. The story is often used as a metaphor for the inability or unwillingness of people to react to significant changes that occur gradually.

The metaphor is apt. Americans — or a very large fraction of Americans — have been “boiled” stealthily:

Power has been passing to Washington for more than 100 years, in defiance of the Constitution, because of … the Nirvana fallacy, unrepresentative government, logjams and log-rolling, fiefdoms and egos, and the ratchet effect and interest-group paradox. Thus Washington is able to exert its power on the entire country, bringing big government to places that don’t want it….

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms. 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. (“‘We the People’ and Big Government,” Politics & Prosperity, November 16, 2013)

And, no, “we” — that is all of “us” — don’t want it to be that way:

If there is an “American psyche,” it has multiple-personality disorder.

What do you think when a snobbish European generalizes about Americans — a bunch of crude, gun-toting, money-grubbers? Do you think that such generalizations are correct? You probably don’t. And if you don’t, why would you think (or speak and write) as if Americans are like ants, that is, of one mind and collectively responsible for the actions of government? …

There’s no need to look abroad for inapplicable generalizations about America…. [C]onservatives and liberals have been separating themselves from each other. Only a cock-eyed optimist — the kind of person who believes that living in the same (very large) geographic requires unity — would call this a bad thing. As if proximity yields comity. It doesn’t work for a lot of families; it doesn’t work for most blacks and whites; it doesn’t work for upper-income and lower-income groups. Why should it work for most conservatives and liberals? …

But aren’t “we all in this together,” as proponents of big and bigger government are wont to proclaim? Not at all. The notion that “we are all in this together” is just a slogan, which really means “I want big and bigger government” to “solve” this or that problem — usually at the expense of persons who have done nothing to create the “problem.” “We are all in this together” is a call for action by government, not proof of a mythical “national will.” If “we” were “all in this together,” we wouldn’t need to be reminded of it. Like a good sports team or military unit, we would simply act that way. (Op. cit.)

It’s true that most human beings crave some kind of social connection. But the gap between that craving and the faux connectedness of one-size-fits-all big government can’t be bridged by ringing phrases (“We the People”), by appeals to patriotism, or by force.

Government can take my money, and it can make me do things the way “technocrats” want them done — and it can do the same to millions of other Americans. But government can’t make me (or those other millions) love the recipients of my money or feel happier because I’m doing things the “right” way. It can only make my (and those other millions) despise the recipients and detest forced conformity. Only divisiveness can prevent the complete destruction of liberty in the name of “society.”

Social unity is found not in government but in genetic kinship:

[G]enetic kinship is indispensable to society, where society is properly understood as “an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.” (“Genetic Kinship and Society,” Politics & Prosperity, August 16, 2012)

It takes overeducated dunderheads like Joshua Greene to denigrate the bonds of genetic kinship, even while openly prizing them.

*     *     *

Other related posts:
On Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
Tocqueville’s Prescience
What Is Conservatism?
Zones of Liberty
Society and the State
I Want My Country Back
The Golden Rule and the State
Government vs. Community
Evolution, Human Nature, and “Natural Rights”
More about Conservative Governance
The Meaning of Liberty
Evolution and the Golden Rule
Understanding Hayek
The Golden Rule as Beneficial Learning
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy
Why Conservatism Works
Reclaiming Liberty throughout the Land
Rush to Judgment
Secession, Anyone?
Race and Reason: The Achievement Gap — Causes and Implications
Liberty and Society
The Eclipse of “Old America”

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…)

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)

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

Not-So-Random Thoughts (VIII)

I begin with a post of mine, “Civil Society and Homosexual ‘Marriage’“:

[A]s sure as the sun sets in the west, the state will begin to apply the equal protection clause of the Fourteenth Amendment in order to protect homosexual “marriage” from its critics. Acting under the rubric of “civil rights” — and  in keeping with the way that anti-discrimination laws have been applied to date — the state will deal harshly with employers, landlords, and clergy who seem to discriminate against homosexual “marriage” and its participants.

And right on schedule:

[T]he New Mexico Supreme Court has found that a photographer who declined to photograph a gay “wedding” was at fault… (Tom Trinko, “New Mexico Takes a Stab at Nullifying the Constitution,” American Thinker, August 25, 2013)

See also my post “Abortion, ‘Gay Rights,” and Liberty.

*****

Keir Maitland nails the pseudo-libertarian mentality:

Libertarians are being torn apart from within. Two groups are responsible for this: the libertines and the liberal bigots. ‘Liberal bigots’ is a phrase that I have stolen from Peter Hitchens and I am using it to describe a group within the libertarian movement who are more concerned about being politically correct than defending anybody’s right to discriminate. By libertines, I mean simply those who view libertarianism as a rebellion against tradition, hierarchy, morality and authority….

The former, the liberal bigots, in my view are often ‘thin libertarians’ of the worst kind: libertarians who believe in the nonaggression axiom and nothing else. These people can only think in terms of libertarian legal theory and, as cultural Marxists, will defend anybody’s way of life, except, oddly enough, a traditionalist and antiegalitarian way of life. The latter, however, are usually ‘thick libertarians’…. Thick libertarians are libertarians who, in addition to being well-versed in libertarian law, think about how a libertarian society would, could and should function. Thick libertarians judge not only whether or not something is legal, but whether it is conducive to libertarian ends. However, sadly, the modal thick libertarian is a libertine: someone who believes that prosperity, happiness and other good ends, for which we all strive, are achieved not through a ‘sensible’ lifestyle but through a relatively reckless one. (“Libertines and Liberal Bigots,” Libertarian Alliance Blog, August 22, 2013)

Maitland’s assessment harmonizes with my own, which I’ve expressed in several posts, including “Defending Liberty against (Pseudo) Libertarians“:

(Pseudo) libertarians like to demonstrate their bogus commitment to liberty by proclaiming loudly their support for unfettered immigration, unfettered speech, unfettered abortion, unfettered same-sex coupling (and legal recognition thereof as “marriage’), and unfettered you-name-it.. In the minds of these moral relativists, liberty is a dream world where anything goes — anything of which they approve, that is….

Another staple of (pseudo) libertarian thought is a slavish devotion to privacy — when that devotion supports a (pseudo) libertarian position. Economists like Caplan and Boudreaux are cagy about abortion. But other (pseudo) libertarians are less so; for example:

I got into a long conversation yesterday with a [Ron] Paul supporter who took me to task for my criticisms of Paul’s positions. For one thing, he insisted, Paul’s position on abortion wasn’t as bad as I made it out, because Paul just thinks abortion is a matter for the states. I pointed out that in my book, saying that states can violate the rights of women [emphasis added] is no more libertarian than saying that the federal government can violate the rights of women.

Whence the “right” to abort an unborn child? Here, according to the same writer:

I do believe that abortion is a liberty protected by the Fourteenth Amendment….

This train of “logic” is in accord with the U.S. Supreme Court’s manufactured “right” to an abortion under the Fourteenth (or was it the Ninth?) Amendment, which I have discussed in various places, including here. All in the name of “privacy.”…

It is no wonder that many (pseudo) libertarians like to call themselves liberaltarians. It is hard to distinguish (pseudo) libertarians from “liberals,” given their shared penchant for decrying and destroying freedom of association and evolved social norms. It is these which underlie the conditions of mutual respect, mutual trust, and forbearance that enable human beings to coexist peacefully and cooperatively. That is to say, in liberty.

*****

A recent foray into constitutional issues unearthed this commentary about the opinion delivered by Chief Justice Roberts in the case of Obamacare:

Oh, how far we’ve deviated from our Founders in just over 200 years.

The entire country is pouring over an incoherent, internally contradictory, ill-conceived and politically motivated decision by Chief Justice Roberts, which grants Congress the power to regulate anything that moves and the power to tax anything that moves and anything that doesn’t move….

If we take the reasoning of Roberts to its logical conclusion, Congress would be able to coerce individuals to buy broccoli once a week, so long as they levy a tax on those who fail to comply with the law.  Putting aside the facial absurdity of Roberts’s tax power jurisprudence, his opinion on the Commerce Clause is nothing to cheer.  While Roberts clearly stated that the Commerce Clause does not grant the federal government the right to regulate inactivity (although it can evidently tax inactivity), he obliquely upheld their authority to regulate any activity under that misconstrued clause.

Amidst the garrulous analysis from the conservative pundit class on the Roberts decision, there is a one-page dissent from Justice Thomas (in addition to his joint dissent with the other 3 conservatives) that has been overlooked….

Take a look at this paragraph from Thomas’s dissent (last two-pages of pdf):

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545

….

Justice Thomas is hearkening back to the Founders.  Not only is every word of Obamacare unconstitutional and an anathema to every tenet of our founding, most of the other programs created in recent years are as well.  The fact that Roberts said the Commerce Clause and the Necessary and Proper Clause don’t apply to inactivity is not a victory for constitutional conservatives.  The implicit notion that the federal government can regulate any activity is appalling to conservatives.

Here’s what James Madison had to say about the Commerce Clause in a letter to Joseph C. Cabell in 1829:

For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

….

The reality is that not only is Obamacare unconstitutional, almost every discretionary department, welfare program, and entitlement program is unconstitutional…. (Daniel Horowitz, “Thomas Dissents: It’s All Unconstitutional,” RedState (Member Diary), June 29, 2012)

On the general issue of the subversion of constitutional limits on governmental power, see “The Constitution: Original Meaning, Corruption, and Restoration.” Specifically related to Obamacare and the individual mandate: “The Unconstitutionality of the Individual Mandate,” “Does the Power to Tax Give Congress Unlimited Power?,” “Does Congress Have the Power to Regulate Inactivity?,” and “Obamacare: Neither Necessary nor Proper.”

*****

Also from RedState, a story that reads in part:

Sadly, we have deviated from our constitutional form of government over the past century.  That’s why Mark Levin has written The Liberty Amendments, a set of proposed constitutional amendments that will unambiguously downsize the federal government by targeting specific loopholes that have allowed the statists to adulterate our Constitution.  Far from this being a radically new vision, Levin proves – through founding documents and floor debates at the Constitutional Congress – how his ideas are in line with what the Founders envisioned in our Federal government.  It’s just that after years of deviating from the Constitution, it has become clear that we need very specific limitations on federal abuses – abuses that have gone far beyond the imagination of our Founders – in order to restore the Republic. (Daniel Horowitz, “Mark Levin’s Liberty Amendments,” Red State (Member Diary), August 13, 2013)

The story includes a good summary of Levin’s amendments. Recommended reading.

A New, New Constitution” covers the same ground, and more. It’s long, but it closes a lot of loopholes that have been opened by legislative, executive, and judicial action.

*****

I turn, finally, to a pair of items by James Pethokoukis with self-explanatory titles: “The Great Stagnation: JP Morgan Declares US Potential GDP Growth Just Half of What It Used to Be” (AEIdeas, August 12, 2013) and “Why Wall Street Thinks the Future Isn’t What It Used to Be” (AEIdeas, August 13, 2013). Read those pieces, and then go to “The Stagnation Thesis” (and follow the links therein) and “Why Are Interest Rates So Low?” (which is replete with more links). The latter post concludes with this:

As long as business remains (rightly) pessimistic about the twin burdens of debt and regulation, the economy will sink deeper into stagnation. The only way to overcome that pessimism is to scale back “entitlements” and regulations, and to do so promptly and drastically.

In sum, the present focus on — and debate about — conventional macroeconomic “fixes” (fiscal vs. monetary policy) is entirely misguided. Today’s economists and policy-makers should consult Hayek, not Keynes or Friedman or their intellectual descendants. If economists and policy-makers would would read and heed Hayek — the Hayek of 1944 onward, in particular –  they would understand that our present and future economic morass is entirely political in origin: Failed government policies have led to more failed government policies, which have shackled both the economy and the people.

Economic and political freedoms are indivisible. It will take the repeal of the regulatory-welfare state to restore prosperity and liberty to the land.

Amen.

As for how the regulatory-welfare state might be repealed, read “Restoring Constitutional Government: The Way Ahead.

A New Constitution for a New Republic

INTRODUCTION

Secession is much in the air. I have said much about it during the past four years. (See this post and the posts listed at the bottom of it.) I will have more to say about the separation of liberty-loving States from the United States. However, I will not counsel secession, which probably is fruitless even though it is legal, Justice Scalia’s dictum to the contrary notwithstanding.

Instead, a future post will propose a treaty of division. I will make the case that secession is legal, offer (in detail) a treaty of division as a beneficial alternative to secession, address practical and ideological objections to division, and discuss its advantages to all parties.

Left-wing opponents of division are likely to charge that the New Republic, as I like to think of it, would be inimical to the rights that Americans now enjoy under the Constitution, as amended and interpreted. I would answer that charge by offering the following new constitution, which would more than adequately safeguards the liberty rights of all who live under it. The most cynical (i.e., left-wing) opponents of division will not acknowledge the sincerity of a commitment to liberty, of course, but nothing will sway them, in any case. The new constitution, along with my proposal, will be aimed at persons of good will who are prepared to act in good faith for the good of all Americans.

The main problem with the Constitution of the United States is not its meaning; it is the fact that inappropriate meanings have been imputed to it because it is too often vague and ambiguous. The following Constitution for the New Republic of America is not only far more specific than the present Constitution of the United States — and more restrictive of the powers of government — but it also includes more checks on those powers. For example, there are these provisions in Article V:

Congress may, by a majority of three-fifths of the members of each House present, when there is a quorum consisting of three-fourths of the number of persons then holding office in each House…. provide for the collection of revenues in order to pay the debts and expenses of the New Republic…. [emphasis added]

*   *   *

A judgment of any court of the New Republic may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

Then there are Articles VII and VIII, Keeper of the Constitution and Conventions of the States, which open thusly:

The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.

*    *    *

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

On top of that, there is Article IX, which authorizes petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.

To the extent that Articles VII, VIII, and IX would inhibit presidential and congressional ventures into unconstitutional territory, so much the better.

This new Constitution also provides for secession, the threat of which might further help to preserve its original meaning.

The new Constitution is below the fold. (more…)

Secession for All Seasons

REVISED 11/07/12

I do not want my liberty (or yours) to depend on the preferences of voters in places like California, Massachusetts, New York, and Vermont. Nor should my liberty (or yours) be hostage to the outcome of a presidential election, to the vagaries of Supreme Court rulings, or to a filibuster-proof cabal of leftists in the U.S. Senate.

It is not supposed to be that way. (See the The Federalist Papers and the Constitution of the United States.) The last time that the presidency of the United States was in the hands of someone who gave a damn about liberty (Ronald Reagan), he did not have enough support in Congress to do more than chisel at the edges of federal power. Now, the GOP-controlled House of Representatives can only try to block Barack Obama’s statist initiatives — and he will go around the House, by issuing unconstitutional executive orders.

In “Secession, Anyone?” I suggested the formation of the Free States of America. The FSA could be built upon Red-Red States. A Red-Red State meets three criteria: (1) its electoral votes have gone to the Republican presidential candidate in the last four elections; (2) its governorship and its legislature will remain in the hands of Republicans for at least two more years (Nebraska’s “nonpartisan” legislature is here counted as Republican); and both of its U.S. Senate seats are held by Republicans (and will be for at least the next two years).  There are 13 Red-Red States:

(If the southeast quadrant of that map resembles an earlier union of disaffected States, so be it. Secession and slavery are separate and separable issues.)

With the fertile ground afforded by those 13 States, it should be possible to create a new republic — one that is bound by a restored Constitution.

When? Sooner rather than later. Sooner because with Democrats in control of the White House and the Senate, the egregious governmental acts of the past four years will not be reversed. Therefore, all who remain subjects of the United States will suffer the consequences of those egregious acts: economic stagnation and rationed health care being two of the more salient consequences.

How? By insisting on the constitutional right of every State to withdraw from the union known as the United States.

Getting out would not be a simple thing, by any means, and there would be a price to pay (e.g., less-free trade between the USA and the FSA; a more costly defense, per capita). But it seems to me that the left ought to be ecstatic about the prospect of controlling a nation — even a somewhat diminished one — while meeting less resistance. Not only would the Red-Red States be gone, but surely a lot of conservatives in Blue States would emigrate to the FSA. What could be more enticing to a leftist than the opportunity to issue edicts at will?

What I am suggesting, of course, is a negotiated secession — a treaty of division, if you will. Do not rule it out. The alternative is worse.

More to come.

Related posts:
How to Think about Secession
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
Re-Forming the United States
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
Secession, Anyone?

Constitutional Confusion

Will Wilkinson’s “The individual mandate: A taxing distinction” is rife with confusion about the Constitution:

…Suppose I sell a novel to a publisher. If the publisher cuts a check to my agent, and my agent cuts a check to me, did I really not do business with the publisher? Of course I did. The middle man is irrelevant to whether or not business has been done between the publisher and I. Likewise, if I cut a check to the government and the government cuts a check to Raytheon, I did business with Raytheon.

…If forcing me to hand a dollar to Raytheon and taking a dollar by force and handing it Raytheon are two materially equivalent ways of making me do business with Raytheon, and they are, then the undisputed power of Congress to tax and spend was a power to force me to do business with private companies all along.

One principled libertarian line on this question is that government has the power to tax only for the purpose of spending on the provision of those public goods, such as the common defence, which voluntary exchange on the free market cannot be relied on to provide…. A ruling to the effect that government may not force citizens to do business with private entities could be useful to a libertarian legal activist precisely because there really is no sound distinction between mediated and unmediated transactions….

The “libertarian line,” principled or not, is irrelevant to the meaning of the Constitution, which is not a libertarian document but a political one. The issue at hand — the constitutionality of the individual mandate — cannot be resolved by invoking libertarian principles; it must be resolved by invoking constitutional principles.

The Constitution gives the federal government the power to raise and employ armed forces in the defense of the nation. The taxing power is used legitimately (in constitutional terms) when it enables the exercise of that power. When Wilkinson is taxed to help defray the cost of national defense, he is not being forced to do business with Raytheon. He is being forced (legitimately, under the Constitution) to support the national defense, which happens to involve purchases from Raytheon (among many things).

One need not get into the messy business of defining public goods to find fault with the individual mandate, as a constitutional matter.  The mandate is constitutionally wrong because there is no constitutional writ for such a thing. Obamacare, of which the mandate is an integral element, is nothing less than an attempt on the part of the federal government to commandeer and direct all economic activity that is conceivably related to a fictional entity called the “market for health care.” The mandate is an attempt to further that scheme by forcing individuals to engage in commerce — a power that can be read into the Constitution only by those who would prefer to have a federal government of unlimited power.

Finally, it is hogwash to say that “there really is no sound distinction between mediated and unmediated transactions.” I am not “doing business with Raytheon” because some of my tax dollars go to Raytheon. I am doing business with the federal government as a (constitutionally legitimate) provider of national defense. But if the federal government forces me to buy health insurance (or pay a hefty penalty), I am doing business with an insurance company, not with the federal government.

Related posts:
Unintended Irony from a Few Framers
Freedom of Contract and the Rise of Judicial Tyranny
Social Security Is Unconstitutional
The Constitution in Exile
What Is the Living Constitution?
Blame It on the Commerce Clause
The Slippery Slope of Constitutional Revisionism
The Real Constitution and Civil Disobedience
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Obamacare: Neither Necessary Nor Proper

Our Perfect, Perfect Constitution

That is the title of a short, biting paper by Michael Stokes Paulsen, Distinguished University Chair and Professor of Law, University of St. Thomas (Minnesota) School of Law. The full text of Paulsen’s nine-page paper is available here, at no charge. I will not repeat any of it because I could not do justice to Paulsen’s scholarly accounting of the current state of the Constitution, as it has been reshaped by the Supreme Court.

Instead, I offer my shorter, unschooled version of the Constitution as it now stands:

  • Congress may pass any law about anything.
  • The president and the independent regulatory agencies created by Congress may do just about anything they want to do because of (a) delegations of power by Congress and (b) sheer willfulness on the part of the president and the regulatory agencies.
  • The Supreme Court may rewrite law at will, regardless of the written Constitution, especially for the purposes of (a) enabling Congress to obliterate social and economic liberty, and (b) disabling the ability of the defense and law-enforcement forces of the United States to defend the life, liberty, and property of Americans.

Related posts:
The Slippery Slope of Constitutional Revisionism
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
The Repealer

A Nation of (Unconstitutional) Laws

I have long viewed the Constitution as a contract, which was entered into initially by the States, as authorized by the people of each State in a ratifying convention. At some point, probably long before the Civil War, the Constitution ceased to be a contract and became a law — or a conglomeration of laws, variously interpreted and enforced by the factions then in control of Congress, the executive branch, and the Supreme Court. The Civil War cemented the status of the Constitution as law by imposing it forcibly on dissenting parties: the members of the Confederate States of America.

The original contract was a compact among the States and the people thereof to form a central government of limited, enumerated powers. The main purposes of that government were to keep peace among the States, ensure a free flow of trade among the States, ensure uniformity in the rules of inter-State and international commerce, face the world with a single foreign policy and a national armed force, and ensure the even-handed application of the Constitution and of constitutional laws.

The central government is no longer the creature of a contract, bound by the terms of that contract. It has become the unaccountable arbiter of its own doings. Its laws — legislative enactments, executive orders, and judicial holdings — sometimes pay lip service to the Constitution. But the central government’s conduct is almost entirely unrelated to and unconstrained by the Constitution. Judicial holdings that affirm the original contract are notable because they are unusual.

What began as a grand bargain among equals has become a Faustian bargain.

Related posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The State of the Union: 2010
The Shape of Things to Come
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam

The Contemporary Meaning of the Bill of Rights: First Amendment (Updated)

I have twice updated “The Contemporary Meaning of the Bill of Rights: First Amendment.” Today’s second update  addresses certain issues noted in “Mandating Our Religious Freedom,” a recent post at Public Discourse, specifically:

The Founders’ protection of religious freedom in the First Amendment was in keeping with their recognition of the supreme importance of the individual, who was created by God and subject to God’s natural law. The early twentieth-century Progressives largely rejected this view, as they concluded that man must not be limited by “arbitrary” rules such as those imposed by religion. Modern progressives have seized upon this viewpoint, especially in their attitudes toward sex. The State will teach children about sex, and it will do so by disconnecting it from its most important component—the spiritual. It does not matter that such teachings are, by nature, within the rights of parents.

Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.

Churches and other people of faith have relied on the judicial process to protect their First Amendment freedoms. But litigation takes an enormous toll in time and resources. Even worse, as many disappointed litigants have discovered, courts grant extraordinary leeway to government and government schools in advancing so-called neutral, generally applicable laws. The courts will follow the lead of the people in defining the parameters of religious liberty; if the people abdicate, the courts will not intercede to protect that liberty.

The problem lies in a 1990 Supreme Court case, Employment Division v. Smith, in which the Court held that the First Amendment does not relieve a citizen of the obligation to comply with a neutral law of general applicability, simply because the law “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Applying Smith, lower courts have rejected almost all challenges to laws and government activities that are based on claims of interference with free exercise of religion. Many of these cases arise in the public-school setting. Courts have found that public-school administrators do not interfere with parents’ First Amendment rights by:

Although older Supreme Court authority acknowledged the fundamental right of parents to control the upbringing and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. Yoder), the post-Smith courts have severely limited those holdings to their unique facts. Now, courts are more likely to hold that parents relinquish, as a practical matter, their First Amendment right to control their children’s education when they choose public schools over private schools or homeschooling. As one court said, parents “have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.”

The first update (on 11/18/11) addresses these aspects of “Mandating Our Religious Freedom”:

The denigration of religious freedom extends to areas of purely private, commercial conduct. Governments increasingly apply nondiscrimination statutes to force private individuals and businesses to participate in conduct that violates their religious beliefs. So far, defenses based on the First Amendment have been unavailing. Some examples:

  • The New Mexico Human Rights Commission found that a small photography business unlawfully discriminated against a same-sex couple by declining, because of the owners’ religious beliefs, to photograph the couple’s commitment ceremony (Willock v. Elane Photography).
  • The California Supreme Court ruled that doctors violated the state nondiscrimination statute by refusing, on religious grounds, to artificially inseminate a woman who was in a lesbian relationship (North Coast Women’s Care Medical Group v. San Diego County Superior Court).
  • A federal court in California found that administrators of an Arizona adoption-facilitation website were subject to California’s statute banning discrimination in public accommodations because they refused to post profiles of same-sex couples as potential parents (Butler v. Adoption Media).
  • A New Jersey agency found probable cause to believe that a church violated a public-accommodations statute by declining to rent its pavilion for a same-sex wedding (a different agency, enforcing nondiscrimination on the basis of sexual orientation, revoked the tax exemption the church had enjoyed under a statute promoting the use of private property as green space) (Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo).
  • A federal appeals court found that an employer’s denial of insurance coverage to an employee’s same-sex partner constituted illegal sex discrimination (In Re Levenson)….

Another arena in which principles of nondiscrimination are elevated over free exercise of religion is the area of public benefits. Across the country, faith-based charities or social-service organizations such as the Salvation Army and the Boy Scouts have been denied government grants or other benefits because of their religiously grounded refusal to yield to the demands of “nondiscrimination” (see, for example, Boy Scouts of America v. Wyman, Catholic Charities of Maine, Inc. v. City of Portland). These demands have included providing insurance benefits to employees’ same-sex partners, admitting homosexuals to the organizations’ leadership ranks, and placing children with same-sex adoptive parents. This latter demand has forced Catholic agencies to cease adoption facilitations in Massachusetts, Illinois, and the District of Columbia rather than violate their religious beliefs about marriage and the family.

Other victims of progressive attitudes toward sexuality and “discrimination” have been public employees who express their religiously based concerns about homosexual conduct. A Los Angeles police officer who was also a Protestant minister was demoted and, he says, denied benefits because of a sermon he delivered that quoted biblical passages about prohibited sexual conduct. An African-American college administrator was fired after she published an op-ed objecting to the equating of race discrimination and sexual-orientation discrimination. And most recently, a New Jersey teacher has come under verbal assault—including from Gov. Chris Christie, who also called for an investigation of her classroom behavior—for posting on her Facebook page her moral objections to a high school’s Lesbian Gay Bisexual Transgender History Month display.

The hostility of courts to such claims of First Amendment violations is unlikely to change, especially in light of the governmental officials’ gravitation toward the European attitude about religion—that it is a divisive influence that must be contained and marginalized. As jurists and legal scholars flirt with the idea of consulting foreign law to evaluate claims under our Constitution, this attitude could take deeper root in American soil.

Progressive to the core, the Obama administration is pursuing even more limitations on religious freedom. One such effort is the proposed mandate of the Department of Health and Human Services (HHS) that health plans cover contraceptives and sterilization, with a religious “exemption” so narrow that (as the U.S. Conference of Catholic Bishops has noted) it would not have covered the ministry of Jesus Christ. Another is the Administration’s argument in a case currently before the Supreme Court that the long-established “ministerial exception” to federal employment-discrimination laws be abandoned. This would mean that rather than allow churches to select and control their own ministers, the federal government could dictate results more in keeping with its secular values. Churches have seen this kind of thing before, and it has not ended well.

I doubt that Thomas Jefferson had this in mind when he proclaimed, wrongly, that the First Amendment built “a wall of separation between Church & State.”

The Contemporary Meaning of the Bill of Rights: Second Amendment

This is the second post in a series about the meaning of the Bill of Rights. The first post (about the First Amendment) gives more background.

The meaning of the Bill of Rights has evolved and shifted with time, not always for the better. What  follows is my version of a workable Second Amendment. The constitutional text is in italics. My version is in bold. It is preceded by a long explanatory note.

The explanatory note and revised amendment are lengthy for two reasons: the original Second Amendment was unduly vague; there are many aspects of the right to bear arms that must be addressed clearly if the essential liberty right is to be upheld.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

EXPLANATORY NOTE FOR CONTEMPORARY VERSION:

The paramount purpose served by the right to bear arms is the “security of a free State,” which is to say, the security of the people. If the people are denied the right to bear arms, they are denied the right to ensure their own security when the state fails in its duty to ensure that security, or when the state oppresses the people.

With respect to oppression, the American Revolution succeeded against an oppressive regime, despite the support of less than half of the populace. The revolution probably would have failed but for two facts: gun ownership was commonplace in that time, and British troops did not enjoy a marked advantage in the quality of their weapons.

Unlike the state of affairs at the time of the American Revolution, the weaponry and other resources that are now in the hands of the police and armed forces of the United States are vastly superior to any that might be acquired by liberty-loving Americans. Police and armed forces, despite the good that they often do for the people, are — in the end –  like the British soldiers who fought the revolutionaries: servants of the state, beholden to it for their compensation, and fearful of its power and reach. It follows that the police and armed forces of the United States are more likely to serve the state — even when it is oppressive — than to serve liberty. This unspoken menace, coupled with tyranny by a “democratic” majority, has enabled the enforcement of the oppressions that began in earnest with the New Deal.

It follows that the arming of private citizens against the forces of oppression is futile. It is probably dangerous as well, because of the threat posed to public safety by large collections of weapons, many of which would inevitably fall into the hands of criminals and terrorists. The most likely outcome of any attempt to topple America’s entrenched, oppressive regime by force is utter defeat and the killing of many innocents.

But, despite its power, the state cannot defend citizens from criminals everywhere and at all times. A disarmed or ill-armed citizenry is an enticement to criminal activity.. Accordingly, citizens ought to enjoy the right to arm themselves for the purpose of self-defense.The purpose of this narrower but enforceable right is to enable the people to enjoy whatever liberty has been left to them, circumscribed or full.

TEXT OF CONTEMPORARY VERSION:

1. Every person has an absolute right to defend his property, himself, or others around him when he reasonably judges that any or all of them are in imminent danger of being stolen or harmed. Retreat and surrender are options, but are not required.

2. Active means of defense may include physical exertions, maneuvers, or blows, without limitation; objects at hand, without limitation; commercially available defensive devices (mechanical, electrical, or chemical) that are designed to disable temporarily; and firearms. For this purpose, a firearm may be a handgun, shotgun, or rifle, without limitation as to its caliber or bore, the number of rounds that can be loaded into it, or its rate of fire. The particular means of defense are at the defender’s discretion. Harm to another person or persons shall be presumed necessary or unavoidable, unless there is probable cause to suspect otherwise.

3. The sale, transportation, and possession of defensive devices and firearms shall be regulated only as provided in this clause:

a. No one under the age of eighteen may purchase a defensive device or firearm. No one who has been hospitalized or confined because of mental illness nor anyone who has been convicted of a felony may purchase or possess a firearm or defensive device.

b. The Congress of the United States may by law regulate the possession of defensive devices and firearms on the property of the government of the United States, including its installations and facilities on foreign soil. The Congress may also by law regulate the possession of defensive devices and firearms on and within modes of interstate transportation that are used by the general public, including terminal facilities directly involved in interstate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

c. The Congress and the States may by law provide for keeping records of the transportation of defensive devices firerarms on modes of interstate and intrastate transportation, but such record-keeping shall not unreasonably interfere with the movement of defensive devices or firearms.

d. The States may by law regulate the possession of defensive devices and firearms on State property (including the property of political subdivisions), and on or within 100 yards of the grounds and buildings of public or private hospitals and public or private educational institutions, but without interfering with instruction in the use, maintenance, and safe-keeping of defensive devices and firearms. The States may also by law regulate the possession of defensive devices and firearms on and within modes of intrastate transportation that are used by the general public, including terminal facilities directly involved in intrastate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

e. Permits shall not be required for the purchase of defensive devices or firearms of the kind contemplated in this amendment. But vendors shall ascertain promptly the eligibility of purchasers in accordance with Clause 3.a.

f. Except as provided in Clauses 3.b and 3.d, no law or regulation of the United States, any State, or any political subdivision of a State shall have the effect of preventing the lawful possessor of a firearm from keeping it on private property, carrying it in a privately owned vehicle, or carrying a handgun on his person. Nor, except as provided in Clauses 3.b and 3.d, shall any law or regulation of the United States, any State, or any political subdivision of a State have the effect of preventing the lawful possessor of a firearm from keeping the firearm loaded and ready to fire when it is on his private private property, in a privately owned vehicle, or on the possessor’s person.