The Repealer

The State of Kansas this year established the office of State Repealer. The Repealer’s job is to

…investigate the system of governance of the State of Kansas including its laws, regulations, and other governing instruments to determine instances in which those laws, regulations, or other governing instruments are unreasonable, unduly burdensome, duplicative, onerous, or in conflict.
… cause to be created at the earliest possible date a system for receiving public comment suggesting various laws, regulations, and other governing instruments to be considered for possible repeal by the Office of the Repealer. This system shall include an online portal for the receipt of such public comment [here].
…cause a recommendation for either outright repeal or for modification to be delivered to the originating body of such law, regulation, or other governing instrument [which meets the standard set forth in paragraph 1 above]…. The recommendation shall set forth with specificity the justification for the requested repeal or modification. Any recommendation made by the … Repealer shall carry the full weight and force of this Administration.
…implement a tracking system to follow the action taken by any originating body on any recommendation made by the State Repealer in order to prepare regular reports to the Office of the Governor regarding the progress of repeal or modification.

I wonder if the idea of a Repealer was stimulated by my proposal to establish a Keeper of the U.S. Constitution (go here and scroll down to Article VII). It is true that the Keeper of the Constitution, as I define the job, would have considerably more power than the Kansas Repealer; to wit:

A. Responsibility and Authority

1. 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. The term “making law” includes — but is not limited to — a legislative, executive, or judicial interpretation of an existing law or laws. Covered acts of the judicial branch include — but are not limited to — denials of appeals or writs of certiorari. The Keeper’s purview does not extend to the ratification of or amendments to this Constitution; the admission of States to the Union, or the secession of States from it; declarations of war; statutes, appropriations, regulations, or orders pertaining directly to the armed forces or intelligence services of the United States; or the employment of the armed forces or intelligence services of the United States. Nor does the Keeper’s purview extend to appointments made by or with the consent of the legislative, executive, or judicial branches.

2. The Keeper may revoke any act that lies within his purview, as defined in section A.1 of this Article VII, provided that the act occurred no more than one year before the date on which he nullifies it. The Keeper shall signify each revocation by informing the Speaker of the House of Representatives, President pro tempore of the Senate, President of the United States, and Chief Justice of the Supreme Court of the United States of his decision and the reason(s) therefor. The Keeper shall, at the same time, issue a public notice of his decision and the reason(s) therefor.

3. The affected branch(es) of government shall, in each case, act promptly to implement the Keeper’s decision. Each implementing act shall be subject to review, as specified in sections A.1 and A.2 of this Article VII.

The establishment of the office of Repealer is, nevertheless, a step in the right direction. Perhaps the idea will spread, and perhaps a State’s constitution will be amended to give a Repealer the kind of authority that I would vest in the Keeper of the Constitution. That would be a bold and instructive experiment in governance.

Union Thuggery…

…of which there has been so much in recent months, seems to be spreading.

The development comes as no surprise to this unprivileged native of Michigan, where unions have long held disproportionate power, due (in part) to their ability to inflict financial and physical harm. I was a “beneficiary” of that power in the 1950s when, as a 16- and 17-year old, I was required to join the Retail Clerks International Union so that I could bag groceries after school and on weekends for the munificent wage of about 90 cents an hour. I went to one union meeting, out of curiosity, and even my 16- or 17-year old self was amused by the sight of grown men calling each other “brother,” like members of the Mystic Knights of the Sea Lodge. Most of those present at the meeting were employees of low-grade, low-margin grocery chains, whose mostly working-class customers they sought to gouge for higher wages. (Of course, the union members didn’t think of it in that way.) The chorus of “brotherhood” was led by a handful of full-time union officials (including a decidedly shifty character), whose customer-financed salaries undoubtedly exceeded the earnings of the workers whom they purported to represent.

Henry Ford was a man of many parts, not all of them praiseworthy, but he was right about labor unions:

Ford was adamantly against labor unions. He explained his views on unions in Chapter 18 of My Life and Work.^[33] He thought they were too heavily influenced by some leaders who, despite their ostensible good motives, would end up doing more harm than good for workers. Most wanted to restrict productivity as a means to foster employment, but Ford saw this as self-defeating because, in his view, productivity was necessary for any economic prosperity to exist.

He believed that productivity gains that obviated certain jobs would nevertheless stimulate the larger economy and thus grow new jobs elsewhere, whether within the same corporation or in others. Ford also believed that union leaders (particularly Leninist-leaning ones) had a perverse incentive to foment perpetual socio-economic crisis as a way to maintain their own power. Meanwhile, he believed that smart managers had an incentive to do right by their workers, because doing so would maximize their own profits. (Ford did acknowledge, however, that many managers were basically too bad at managing to understand this fact.) But Ford believed that eventually, if good managers such as he could fend off the attacks of misguided people from both left and right (i.e., both socialists and bad-manager reactionaries), the good managers would create a socio-economic system wherein neither bad management nor bad unions could find enough support to continue existing.

Given that the Wagner Act was an unconstitutional usurpation of property rights, I cannot entirely condemn Ford’s bare-knuckles method of dealing with union organizers, who were bare-knuckles men themselves.

And then there were Jimmy Hoffa and his namesake son, to name but a few “icons” of the “peaceful” labor movement and its habit of wrenching above-market wages and lucrative pensions from the honest workers of America.

* * *

Labor Day Reading

Here and here.

An Economist’s Special Pleading: Affirmative Action for the Ugly

It’s hard to tell whether economist Dan Hamermesh is pulling our collective leg, or if he’s serious. In either event, here’s a portion of his proposal to instigate affirmative action for the uglies among us (“Ugly? You May Have a Case,” The New York Times, August 27, 2011):

While extensive research shows that women’s looks have bigger impacts in the market for mates, another large group of studies demonstrates that men’s looks have bigger impacts on the job.

Why this disparate treatment of looks in so many areas of life? It’s a matter of simple prejudice. Most of us, regardless of our professed attitudes, prefer as customers to buy from better-looking salespeople, as jurors to listen to better-looking attorneys, as voters to be led by better-looking politicians, as students to learn from better-looking professors. This is not a matter of evil employers’ refusing to hire the ugly: in our roles as workers, customers and potential lovers we are all responsible for these effects.

How could we remedy this injustice? With all the gains to being good-looking, you would think that more people would get plastic surgery or makeovers to improve their looks. Many of us do all those things, but as studies have shown, such refinements make only small differences in our beauty. All that spending may make us feel better, but it doesn’t help us much in getting a better job or a more desirable mate.

A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?

Why would Hamermesh take a special interest in the advancement of ugly persons? It’s probably a case of special pleading:

(I knew Hamermesh when he was in his early 20s. The beard is a cosmetic improvement.)

Hamermesh’s curriculum vitae is fairly impressive, but it is evident that he failed to make the grade in the Ivy League. If Hamermesh blames his looks for his inability to rise higher in his profession, he should not. As economists go — and I’ve known dozens of them — his looks fall in the mid-range. So, if Hamermesh is disappointed in his professional standing, he should blame it on the inner man, not on his looks.

He should consider, also, that there is a high correlation between looks and intelligence. Good-looking individuals are not more successful, on average, than their less-blessed peers; they are more successful because they generally are smarter than their peers.

But none of this will matter to Hamermesh, if he is serious, or to those who are serious about combating what they call look-ism or beauty-ism. The search for cosmic justice — the rectification of all that is “unfair” in the world — is relentless, knows no bounds, and is built upon the resentment and punishment of success.

Blackmail, Anyone?

Robin Hanson’s latest entry in his series of posts about blackmail, “Blackmail Enforces Law,” contains the kernel of a valid idea:

[L]egalizing blackmail would create an especially cheap and flexible system of private law enforcement. If an associate of a criminal discovered evidence of their crime, this associate could via blackmail extract close to the cash equivalent of the punishment to the criminal. While this might modestly lower the level of punishment of a caught criminal, it should greatly increase the probability of punishment, leading to more expected punishment of crime.

Hanson’s claim is flawed by its detachment from reality. Blackmailing a criminal is not a life-prolonging exercise. But Hanson is onto something, though he may not know it. That “something” is the undoubted fact that — aside from sociopaths and persons who are severely mentally ill or retarded, mentally — human beings strive to earn approval (and even praise) and to avoid disapproval (and even ridicule).

Hanson comes close to acknowledging this crucial point when he says:

One unmentioned possible cost of blackmail is a weakening of the bonds that tie people together. You’ll be less open to people who could blackmail you.

But he continues with his defense of blackmail as a socially valuable practice instead of pausing to reflect about “the bonds that tie people together.” Those bonds, as I suggest above, derive in part from the need to gain approval of others, while avoiding their disapproval.

How often does a person (well, perhaps not an academic of Hanson’s ilk) do or say something — or refrain from doing or saying something — in order to gain approval or avoid disapproval? I daresay that the only a small fraction of the actions influenced by the prospect of disapproval would be deemed worthy of blackmail. And then there are all of the actions that are influenced by the prospect of approval, and which are not contemplated in Hanson’s kind of traditional blackmail.

Hanson, once again, cannot see the forest because he is intent on inspecting a particular tree.

About Democracy

I want to be clear about this: Yesterday’s post was a criticism of the left’s hypocrisy and authoritarianism (and viciousness). It was not a defense of democracy.

I have written many times about the insidious effect of democracy on liberty. This is may be my best effort (from part VI of my series on practical libertarianism):

[Americans] have been following [a] piecemeal route to serfdom — adding link to link and chain to chain — in spite of the Framers’ best intentions and careful drafting. Why? Because the governed — or dominant coalitions of them — have donned willingly the chains that they have implored their governors to forge. Their bondage is voluntary, though certainly not informed. But their bondage is everyone’s bondage…

[B]ecause we have undone the work of the Framers … , we have descended to tyranny by the majority, where the majority is a loose but potent coalition of interest- and belief-groups bent on imposing its aims on everyone.

Unchecked democracy undermines liberty and its blessings. Unchecked democracy imposes on everyone the mistakes and mistaken beliefs of the controlling faction. It defeats learning. It undoes the social fabric that underlies civility. It defeats the sublime rationality of free markets, which enable independent individuals to benefit each other through the pursuit of self-interest. As “anonymous” says, with brutal accuracy, “Democracy is two wolves and a lamb voting on lunch.”

Unchecked democracy has led to what Tocqueville called “soft despotism.” As I say in “Fascism and the Future of America,”\

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

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

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

How has America come to its present state, where Americans are hostage to the very regulatory-welfare state that so many expected to bestow liberty and prosperity on the land? I chalk it up to what I call, in “Liberty and Federalism,” the Framers’ fatal error:

The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s 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….

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed … that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself (possibly) and the States’ ratifying conventions (certainly) on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake.

Thus does democracy destroy liberty.

A Balanced-Budget Amendment and the Constitution

This post is in two parts. Part I rebuts a fatuous attack on proposals for a balanced-budget amendment to the U.S. Constitution. Part II offers an amendment that would result not only in a balanced budget (with appropriate exceptions) but also would limit the federal government’s ability to spend for purposes not contemplated by the Framers of the Constitution.

I. REBUTTING A FATUOUS ATTACK ON PROPOSALS FOR A BALANCED-BUDGET AMENDMENT

The blogger known as Patterico points approvingly to Carson Holloway’s “The Balanced Budget Amendment: What Would Hamilton Say?” at Public Discourse. I am less enthusiastic, to say the least, about Holloway’s arguments against a balanced-budget amendment. Here are key quotations (in italics) from Holloway’s article, followed by my comments (in bold):

[T]he Constitution, as it stands and as the Founders crafted it, empowers the Congress to “borrow money on the credit of the United States.” The Founders, evidently, intended that the government be capable of incurring debt.

Holloway begins by framing the problem incorrectly; it is spending, not borrowing. A balanced-budget amendment need not keep the federal government from borrowing, and could easily be framed to allow borrowing under specified conditions and for specified purposes.

It is possible that circumstances have changed and that a balanced budget amendment is now necessary to realize those basic principles, such as limited government, to which the Founders were committed.

It is obviously true that circumstances have changed. Look at the massive future outlays implied in “entitlement” programs, and consider the effects of those outlays on the productive sectors of the economy. A balanced-budget amendment is as necessary today as Amendment XIII (abolishing slavery) was deemed in 1865.

[F]or those who respect the Founding and seek to be guided by it, the fact that such an amendment would take away or restrict a federal power that the Founders thought necessary should be a cause for hesitation and further reflection. Before deciding to support a balanced budget amendment, we ought to ask: why did the Founders empower the government to borrow?

I respect the Founding and am guided by it. Article V of the original Constitution provides for amendments, and does not restrict the character of amendments. (There was one restriction, which lapsed in 1808.) When the citizens of the United States are confronted with crippling economic policies perpetrated by the government of the United States, amending the Constitution to rectify those policies is among the least drastic of means available to the citizenry.

Here we might turn with particular profit to that Founder most associated with the establishment of America’s public finances, the first Secretary of the Treasury, Alexander Hamilton. Upon taking office, Hamilton was confronted with an infant republic, saddled with considerable debt from the revolution and far behind in its repayment obligations. In late 1789, the House of Representatives charged him with devising a plan to put the nation’s finances back on a sound footing, and he responded with his masterly and much-admired Report on Public Credit; Congress subsequently adopted its recommendations. While the Report’s primary purpose was to provide a financial plan, Hamilton, seeking perhaps to educate public opinion and influence the views of legislators, opened the Report with some general reflections on the importance of public credit. It is here that we might gain some insights to enlighten the contemporary debate on the balanced budget amendment.

It is ironic that Holloway should turn to Hamilton, whose expansive view of the powers of the federal government.has been openly praised and emulated by legislators, executives, and judges. If any one person can be blamed for the runaway spending that threatens Americans’ prosperity, it is Hamilton.

Why, then, do Hamilton’s principles seem to condemn a balanced budget amendment to the Constitution? Though Hamilton claims that public borrowing should be undertaken in response to unforeseeable “exigencies” or “emergencies,” he nevertheless claims that public borrowing is a “necessity.” This is the case because, while the exact nature of such exigencies cannot be known in advance, we can know, with great confidence, that they will arise, in one shape or another, and that they will overtax the ordinary revenues of the government.

Holloway, again, shifts the focus from spending to borrowing. Borrowing is not the problem, nor is borrowing out of the question under a balanced-budget amendment.

[T]he proponents of the balanced budget amendment might respond that it can be crafted in such a way as to allow for public borrowing in cases of war or crisis…. [I]t would surely be foolhardy to write the amendment in such a way as to allow public borrowing only in cases of war, because it does not take too much imagination to summon to mind many potential crises short of war that might be addressed best through public borrowing….

Holloway assumes that “crises” short of war are any of the federal government’s business, and that — if they are — they could not be addressed simply by re-prioritizing the federal budget. The “crisis” of the Great Depression elicited many unconstitutional schemes. Social Security is the most notable of them and, until the advent of Medicare, perhaps the most disastrous.

[A]n inability to borrow would not only hamstring the government in responding to grave public evils; it might also prevent the government from seizing positive opportunities that could produce public benefits for generations. America might, at some point, have a chance to purchase some valuable new territory, perhaps rich in natural resources, that will enhance the nation’s prosperity. Such a purchase, however, might require an immediate transfer of money that would be impossible without the ability to borrow.

Here, Holloway resorts to fantasy and appeals to mercantilism. If there is “some valuable new territory, … rich in natural resources” to be acquired, let it be “exploited” by the most efficient producer (of whatever nationality). Americans will benefit by being able to purchase more, newer, and better things at better prices from the “exploiter.” There is no particular advantage if the “exploiter” is American, for even in that case its products will not be given away to other Americans. If the “exploiter” chooses — for some insane reason — not to offer products to Americans, that would be the exploiter’s loss. If the “exploiter” is a foreign nation with evil designs, a peaceful acquisition is unlikely and the evil designs are best met through federal government’s constitutional authority to provide for the common defense.

One could, of course, try to avoid all of these problems by framing the necessary exception broadly enough in the language of a balanced budget amendment. The amendment might, for example, allow public borrowing not only in cases of war but also in cases of public crisis. But if a narrowly drawn exception accomplishes too much by preventing borrowing when it is really needed, a broadly drawn exception would accomplish too little and would, in fact, make the amendment useless for all practical purposes.

What about an exception that is drawn in a way that accomplishes what is needed? (I’ll come to that.) Holloway’s generalities are uninformative, and clearly designed to support his prejudice against a balanced-budget amendment.

The proponents of a balanced budget amendment might instead try to discipline borrowing by establishing a serious procedural obstacle to incurring debt. For example, the amendment might require a two-thirds majority of each House to authorize borrowing on behalf of the public. Based on the American experience, it is not clear that such a requirement would seriously deter the government from incurring new debt. In the Senate, the filibuster already creates a supermajority requirement (of three-fifths) for increasing the nation’s debt, yet debt-ceiling increases have routinely passed the Senate. Indeed, debt-ceiling increases have been routinely enacted with overwhelming support in both Houses of Congress. In the most recent, and most hotly contested, debt-ceiling debate ever, 62% of the House of Representatives and 74% of the Senate voted to issue more debt. One might try for an even more stringent requirement—calling for, say, a three-fourths vote in each House of Congress—but this would only exacerbate an already serious failing in any supermajority requirement: namely, any supermajority requirement is anti-majoritarian, and the higher the bar is set, the more anti-majoritarian it is. A balanced budget amendment framed in this way thus strikes at one of the vital principles of American republicanism: majority rule. It would be a step backwards in the direction of the Articles of Confederation, which required supermajorities for important actions of the Federal government.

Holloway once again deploys shifty logic and dubious facts in the service of big government. As for the recent debt-ceiling debate, it resulted not only in a higher debt ceiling but also in the reduction of planned spending — a precedent, as far as I know. As for the use of rules that require approval of certain actions by supermajorities, Holloway’s earlier appeal to the Founders (Framers, really*) should put him on the side of such rules. (That he appeals only to one such Framer, big-spending Alexander Hamilton, gives him away.) For one thing, the Constitution specifically states that “Each House may determine the Rules of its Proceedings” (Article I, Section 5).

More generally, the Constitution was meant to thwart majorities and, therefore, to ensure that the federal government remained limited in its power and scope. The need for supermajorities in certain matters is merely an entirely constitutional effort to restore checks that have been eroded by unconstitutional actions: leglistative, executive, and judicial. Majority rule is not a vital principle of American republicanism, as Holloway asserts. Indeed, for reasons advanced eloquently by James Madison in Federalist No. 10, majority rule is to be feared and circumscribed. If supermajorities are required for important actions of the federal government, it is only because the federal government has slipped its constitutional bounds.

Holloway would admit such things were he an honest advocate of the Constitution, and not just of Alexander Hamilton’s successful but unconstitutional scheme to enlarge the federal government. But if Holloway were an honest advocate of the Constitution, he would admit, also, that the Constitution has been “amended” by stealth, to allow the federal government to run up huge bills and huge debts, instead of having been amended properly, as provided in Article V.

In summary, contrary to Holloway’s assertion a balanced-budget amendment would not be a step backward. Such an amendment is badly needed to restore the Framers’ original scheme: a government of limited, enumerated scope, as opposed to a government of unlimited scope, financed by the blank check of unlimited borrowing that Holloway seems so devoutly to wish.

II. AMENDMENT TO BALANCE THE FEDERAL BUDGET AND LIMIT THE SCOPE AND SPENDING OF THE FEDERAL GOVERNMENT

Amendment XXVIII

Section 1.

The entire text of Sections 8 and 9 of Article I of the Constitution is replaced by the following:

Section 8.

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:

a. collect revenues in order to pay the debts and expenses of the United States, so long as

• the debts and expenses are incurred through constitutional actions,

• the revenues are not collected through taxes or levies on income or assets,

• all taxes and levies are uniform throughout the united States, and

• there is published a regular statement and account of the receipts and expenditures of all public money;

b. borrow money on the credit of the United States in order to pay its legitimate debts,

(1) so long as the indebtedness of the United States does not increase over any ten-year period, as determined by comparing the amount of indebtedness at the end of the preceding fiscal year with the amount of indebtedness at the end of the tenth preceding fiscal year;

(2) except that, for the purpose of determining the change in indebtedness over any ten-year period. the amount of indebtedness at the end of the preceding fiscal year shall not include the sums spent during the ten-year period for any purpose contemplated in this Constitution, if said expenditures were made pursuant to appropriations approved by at least three-fourths of the members of each House present when there is a quorum of at least three-fourths of the number of persons then holding office in each House;

(3) if the indebtedness of the United States increases, as determined in accordance with the two preceding clauses, then no person who served as a member of Congress or as president or vice president of the United States during the ten-year period in which the amount of indebtedness increased shall thereafter be eligible for election or appointment to Congress or an executive or judicial office of the United States;

(4) further, if indebtedness shall have increased, as determined in accordance with clauses (1) and (2) above, outlays by the government of the United States for all purposes but national defense shall be reduced pro-rata — and without recourse to legislative, executive, or judicial action — in the amounts required to offset the increase in indebtedness within two fiscal years.

[This is adapted from Article V, Section B (Specific Powers of Congress), of “A New, New Constitution.” Go there for a complete listing of Congress’s powers and lack thereof.]

Section 2.

The following article is added to the main text of the Constitution:

Article VIII.

Section 1.

Each word, phrase, clause, sentence, section, and article of this Constitution, as amended, shall be construed in accordance with the meanings of the aforesaid at the time of their ratification.

Section 2.

Where there is ambiguity about the meaning of any portion of this Constitution listed in the foregoing section of this Article VIII, its meaning shall be determined by reference to the speeches and writings of the proponents of the language adopted through ratification.

Section 3.

The meaning of any portion of this Constitution may not be altered to include subjects or powers not specifically contemplated in the language of this Constitution, as determined in accordance with the foregoing sections of this Article VIII.

Section 4.

Despite exigencies, real or proclaimed, the subjects of this Constitution and the powers herein granted or denied may be changed only by amendment, in accordance with Article V.

[This is adapted from Article X, Section C (Construction), of “A New, New Constitution.”]

_________
* “Founders” encompasses the entire founding generation of political leaders who led the Revolution, signed the Declaration of Independence, and crafted the Constitution. “Framers” refers strictly to the makers of the Constitution. Hamilton was one of them, and the assurances that he gave in his numbers of the Federalist about his belief in limited government proved to be deceptive.

See also “The Constitution: Myths and Realities“.

Crimes against Humanity

A post by Francis Beckwith (“Thomson’s Defense of Abortion at Forty“), which takes a new look at Judith Jarvis Thomson’s “A Defense of Abortion (Philosophy & Public Affairs, 1971),” prompts me to recall my writings and warnings about abortion and other eugenic practices.

I begin with an excerpt of my first anti-abortion post, from August 2004, “I’ve Changed My Mind“:

As a libertarian — who believes that a legitimate function of the state is to protect humans from force — I can no longer condone the legality of abortion. For one thing, legal abortion is a step on the path to legal euthanasia….

Once life begins it is sophistry to say that abortion doesn’t amount to the taking of an innocent life. It is also sophistry to argue that abortion is “acceptable” until such-and-such a stage of fetal development. There is no clear dividing line between the onset of life and the onset of human-ness. They are indivisible.

The state shouldn’t be in the business of authorizing the deaths of innocent humans. The state should be in the business of protecting the lives of innocent humans — from conception to grave.

I have much more to say about eugenics. Please read on. Continue reading “Crimes against Humanity” →

The Fire This Time

UPDATED 08/10/11

Riots in the UK — especially in London — are drawing much attention from the media. Why are there riots in the UK? It’s the welfare state, stupid. Take away a person’s self-reliance and dignity by putting him on the dole, and he has little in the way of inner resources and skills to draw on when you take him off the dole. (Michael Gove understands this; Harriet Harman does not.)

What about the less-publicized black-on-white “flash mob” attacks taking place in the U.S.? The same answer, with the added indignity of the job-killing minimum wage.

It is my fervent hope that American police forces be allowed to respond to “flash mobs” with force, and that American courts prosecute mobsters vigorously and mercilessly.

It is my fervent hope that American politicians will not throw money at the sector of the populace whence the mobs come, in the vain hope of quelling their anger. As a start on solving this “problem” — another instance of government failure — the minimum wage should be abolished and the rabble should be told to get off the streets and get jobs.

To the end of getting troublemakers off the streets, laws against loitering should be reinstated and enforced. It’s time to stop coddling people who truly aren’t paying their “fair share” of taxes.

UPDATE:

The always-excellent Theodore Dalrymple weighs in (link below); for example:

The riots are the apotheosis of the welfare state and popular culture in their British form. A population thinks (because it has often been told so by intellectuals and the political class) that it is entitled to a high standard of consumption, irrespective of its personal efforts; and therefore it regards the fact that it does not receive that high standard, by comparison with the rest of society, as a sign of injustice. It believes itself deprived (because it has often been told so by intellectuals and the political class), even though each member of it has received an education costing $80,000, toward which neither he nor—quite likely—any member of his family has made much of a contribution; indeed, he may well have lived his entire life at others’ expense, such that every mouthful of food he has ever eaten, every shirt he has ever worn, every television he has ever watched, has been provided by others. Even if he were to recognize this, he would not be grateful, for dependency does not promote gratitude. On the contrary, he would simply feel that the subventions were not sufficient to allow him to live as he would have liked.

At the same time, his expensive education will have equipped him for nothing. His labor, even supposing that he were inclined to work, would not be worth its cost to any employer—partly because of the social charges necessary to keep others such as he in a state of permanent idleness, and partly because of his own characteristics. And so unskilled labor is performed in England by foreigners, while an indigenous class of permanently unemployed is subsidized.

The culture of the person in this situation is not such as to elevate his behavior. One in which the late Amy Winehouse—the vulgar, semicriminal drug addict and alcoholic singer of songs whose lyrics effectively celebrated the most degenerate kind of life imaginable—could be raised to the status of heroine is not one that is likely to protect against bad behavior.

Finally, long experience of impunity has taught the rioters that they have nothing to fear from the law, which in England has become almost comically lax—except, that is, for the victims of crime. For the rioters, crime has become the default setting of their behavior; the surprising thing about the riots is not that they have occurred, but that they did not occur sooner and did not become chronic.

__________

Related reading:
Walter Russell Mead, “American Tinderbox”
Bill Vallicella, “Flash Mobs”
Victor Davis Hanson, “Paralytic American Society”
Bruce McQuain, “London Rioting — Are We Seeing the End of the Welfare State?”
Theodore Dalrymple, “British Degeneracy on Parade“

Facets of Liberty

Liberty is not a “thing” or a kind of Platonic ideal; it is a modus vivendi. Roger Scruton captures its essence in this pithy paragraph:

People are bound by moral laws, which articulate the idea of a community of rational beings, living in mutual respect, and resolving their disputes by negotiation and agreement. (An Intelligent Person’s Guide to Philosophy, p. 112)

Fittingly, Scruton’s observation comes at the beginning of the chapter on “Morality.” I say fittingly because liberty depends on morality — properly understood as a canon of ethical behavior — and morality, as I argue below, depends very much on religion.

Where is libertarianism in all of this? Read on:

LIBERTY: ITS MEANING AND PREREQUISITES

Liberty can be thought of as freedom, when freedom is understood as permission to act within agreed limits on behavior.

Liberty, in other words, is not the absence of constraints on action. In a political context (i.e., where two or more persons coexist), there are always constraints on the behavior of at least one person, even in the absence of coercion or force. Coexistence requires compromise because (I daresay) no two humans are alike in their abilities, tastes, and preferences. And compromise necessitates constraints on behavior; compromise means that the parties involved do not do what they would do if they were isolated from each other or of a like mind about everything. Compromise is found in marriage, in friendships, in social circles, in neighborhoods, in workplaces, as well as the formal institutions (e.g., Congress) that one usually thinks of as “political.”

Where there is liberty, social norms are not shaped by the power of the state (though they may be enforced by the state). Rather, where there is liberty, social norms consist solely of the ever-evolving constellation of the voluntary compromises that arise from “non-political” institutions (i.e., marriage, etc.). It is the observance of social norms that enables a people to enjoy liberty: peaceful, willing coexistence and beneficially cooperative behavior.

Self-styled libertarians (about whom, more below) seem to reject this reasonable definition of liberty, and its antecedent conditions. They can do so, however, only by envisioning a Utopian polity that comprises like-minded persons who are for abortion, same-sex “marriage,” and open borders, and against war (except, possibly, as a last-ditch defense against invading hoards). They are practically indistinguishable from “liberals,” except in their adamant defense of property rights and free markets. (And some of them are lukewarm about property rights, if the enforcement of those rights allows discrimination based on personal characteristics.)

In summary, only where voluntarily evolved social norms are untrammeled by the state can individuals possibly live in peaceful, willing coexistence and engage in beneficially cooperative behavior — that is to say, live according to the Golden Rule.

What are the key attributes of those norms? Jennifer Roback Morse says, in “Marriage and the Limits of Contract” (Policy Review, No. 130, April 1, 2005):

[l]ibertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts…. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows.

But whence “a culture of law-abidingness, promise-keeping, and respect for contracts”? Friedrich Hayek knew the answer to that question. According to Edward Feser (“The Trouble with Libertarianism,” TCS Daily, July 20, 2004), Hayek was firmly committed

to the proposition that market society has certain moral presuppositions that can only be preserved through the power of social stigma. In his later work especially, he made it clear that these presuppositions concern the sanctity of property and of the family, protected by traditional moral rules which restrain our natural impulses and tell us that “you must neither wish to possess any woman you see, nor wish to possess any material goods you see.”[1]

“[T]he great moral conflict… which has been taking place over the last hundred years or even the last three hundred years,” according to Hayek, “is essentially a conflict between the defenders of property and the family and the critics of property and the family,”[2] with the latter comprising an alliance of socialists and libertines committed to “a planned economy with a just distribution, a freeing of ourselves from repressions and conventional morals, of permissive education as a way to freedom, and the replacement of the market by a rational arrangement of a body with coercive powers.”[3] The former, by contrast, comprise an alliance of those committed to the more conservative form of classical liberalism represented by writers like Smith and Hayek himself with those committed to traditional forms of religious belief. Among the benefits of such religious belief in Hayek’s view is its “strengthening [of] respect for marriage,” its enforcement of “stricter observance of rules of sexual morality among both married and unmarried,” and its creation of a socially beneficial “taboo” against the taking of another’s property.[4] Indeed, though he was personally an agnostic, Hayek held that the value of religion for shoring up the moral presuppositions of a free society cannot be overestimated:

“We owe it partly to mystical and religious beliefs, and, I believe, particularly to the main monotheistic ones, that beneficial traditions have been preserved and transmitted… If we bear these things in mind, we can better understand and appreciate those clerics who are said to have become somewhat sceptical of the validity of some of their teachings and who yet continued to teach them because they feared that a loss of faith would lead to a decline in morals. No doubt they were right…”[5]

LIBERTY IN TODAY’S WORLD

Social norms and socializing influences (like religion) are essential to self-governance, but self-governance by mutual consent and mutual restraint — by adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loath to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters are not involved.

More generally, there is a human tendency to treat friends differently than acquaintances, acquaintances differently than strangers, and so on. The closer one is to a person, the more likely one is to accord that person trust, cooperation, and kindness. Why? Because there usually is a difference between the consequences of behavior that is directed toward strangers and the consequences of behavior that is directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”) becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or establish a central power (a state), which codifies and enforces rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms, and the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

LIBERTY VS. “LIBERALISM”

The dominance of the state is the essential creed of modern “liberalism,” which has been diagnosed, quite rightly, as superficially benign fascism.

What about the “liberal” agenda, which proclaims the virtues of social liberty even as it destroys economic liberty. This is a convenient fiction; the two are indivisible. There is no economic liberty without social liberty, and vice versa:

[W]hen the state taxes or regulates “economic” activity, it shapes and channels related “social” activity. For example, the family that pays 25 percent of its income in taxes is that much less able to join and support organizations of its choice, to own and exhibit tokens of its socioeconomic status, to afford better education for its children, and so on. The immediate rejoinder will be that nothing has been changed if everyone is affected equally. But because of the complexity of tax laws and regulations, everyone is not affected equally. Moreover, even if everyone were deprived equally of the same kind of thing — a superior education, say — everyone would be that much worse off by having been deprived of opportunities to acquire remunerative knowledge and skills, productive relationships, and mental stimulation. Similarly, everyone would be that much worse off by being less well clothed, less well housed, and so on. Taxes and regulations, even if they could be applied in some absolutely neutral way (which they can’t be), have an inevitably deleterious effect on individuals.

In sum, there is no dividing line between economic and social behavior. What we call social and economic behavior are indivisible aspects of human striving to fulfill wants, both material and spiritual. The attempt to isolate and restrict one type of behavior is futile. It is all social behavior.

If markets are not free neither are people free to act within the bounds of voluntarily evolved social norms.

LIBERTARIANS AND LIBERTY

Although most of today’s libertarians (rightly) pay homage to Hayek’s penetrating dismissal of big government, his cultural views (noted earlier) are beneath their notice. And no wonder, for it is hard these days to find a self-styled libertarian who shares Hayek’s cultural views. What now passes for libertarianism, as I see it, is strictly secular and even stridently atheistic. As Feser puts it in “The Trouble with Libertarianism,” these

versions of libertarianism … do not treat conservative views as truly moral views at all; they treat them instead as mere prejudices: at best matters of taste, like one’s preference for this or that flavor of ice cream, and at worst rank superstitions that pose a constant danger of leading those holding them to try to restrict the freedoms of those practicing non-traditional lifestyles. Libertarians of the contractarian, utilitarian, or “economistic” bent must therefore treat the conservative the way the egalitarian liberal treats the racist, i.e. as someone who can be permitted to hold and practice his views, but only provided he and his views are widely regarded as of the crackpot variety….

[T]here are also bound to be differences in the public policy recommendations made by the different versions of libertarianism. Take, for example, the issue of abortion. Those whose libertarianism is grounded in … Hayekian thinking are far more likely to take a conservative line on the matter. To be sure, there are plenty of “pro-choice” libertarians influenced by Hayek. But by far most of these libertarians are (certainly in my experience anyway) inclined to accept Hayek’s economic views while soft-pedaling or even dismissing the Burkean traditionalist foundations he gave for his overall social theory. Those who endorse the latter, however, are going to be hard-pressed not to be at least suspicious of the standard moral and legal arguments offered in defense of abortion….

By contrast, libertarians influenced by contractarianism are very unlikely to oppose abortion, because fetuses cannot plausibly be counted as parties to the social contract that could provide the only grounds for a prohibition on killing them. Utilitarianism and “economism” too would provide no plausible grounds for a prohibition on abortion, since fetuses would seem to have no preferences or desires which could be factored into our calculations of how best to maximize preference- or desire-satisfaction.

There are also bound to be differences over the question of “same-sex marriage.”… [A] Hayekian analysis of social institutions fail to imply anything but skepticism about the case for same-sex marriage. Hayek’s position was that traditional moral rules, especially when connected to institutions as fundamental as the family and found nearly universally in human cultures, should be tampered with only with the most extreme caution. The burden of proof is always on the innovator rather than the traditionalist, whether or not the traditionalist can justify his conservatism to the innovator’s satisfaction; and change can be justified only by showing that the rule the innovator wants to abandon is in outright contradiction to some other fundamental traditional rule. But that there is any contradiction in this case is simply implausible, especially when one considers the traditional natural law understanding of marriage sketched above.

On the other hand, it is easy to see how contractarianism, utilitarianism, and “economism” might be thought to justify same-sex marriage. If the actual desires or preferences of individuals are all that matter, and some of those individuals desire or prefer to set up a partnership with someone of the same sex and call it “marriage,” then there can be no moral objection to their doing so.

I do not mean to belabor the issues of abortion and same-sex “marriage,” about which I have written at length (e.g., here and here). But, like war, they are “wedge” issues among libertarians. And most (perhaps all) libertarians whose writings I encounter on the internet — Feser’s contractarian, utilitarian, and economistic types — are on the libertine side of the issues: pro-abortion and pro-same-sex “marriage.” A contractarian, utilitarian, economistic libertarian will condone practices that even “liberals” would not (e.g., blackmail).

RELIGION AND LIBERTY

The libertine stance of “mainstream” libertarians points to moral rootlessness. Such libertarians like to say that libertarianism is a moral code, when — as Feser rightly argues — it is destructive of the kind of morality that binds a people in mutual trust and mutual forbearance. These depend on the observance of actual codes of conduct, not the rote repetition of John Stuart Mill’s empty “harm principle.”

It is my view that libertarians who behave morally toward others do so not because they are libertarians but because their cultural inheritance includes traces of Judeo-Christian ethics. For example, the non-aggression principle — a foundation of libertarian philosophy — is but a dim reflection of the Ten Commandments.

As Roback Morse and Hayek rightly argue, a libertarian order can be sustained only if it is built on deeply ingrained morality. But that morality can only operate if it is not circumscribed and undermined by the edicts of the state. The less intrusive the state, the more essential are social norms to the conditions of liberty. If those norms wither away, the results — more rapaciousness, heedlessness, and indolence — invite the the growth of the state and its adoption of repressive policies.

The flimsy morality of today’s libertarianism will not do. Neither the minimal state of “mainstream” libertarians nor the stateless Utopia of extreme libertarians can ensure a moral society, that is, one in which there is mutual trust, mutual forbearance, and promise-keeping.

Where, then, is moral education to be had? In the public schools, whose unionized teachers preach the virtues of moral relativism, big government, income redistribution, and non-judgmentalism (i.e., lack of personal responsibility)? I hardly think so.

That leaves religion, especially religion in the Judeo-Christian tradition. As the Catholic Encyclopedia puts it:

The precepts [of the last six of the Commandments] are meant to protect man in his natural rights against the injustice of his fellows.

His life is the object of the Fifth;

the honour of his body as well as the source of life, of the Sixth;

his lawful possessions, of the Seventh;

his good name, of the Eighth;

And in order to make him still more secure in the enjoyment of his rights, it is declared an offense against God to desire to wrong him, in his family rights by the Ninth;

and in his property rights by the Tenth.

Though I am a deist, and neither a person of faith nor a natural-rights libertarian, I would gladly live in a society in which the majority of my fellow citizens believed in and adhered to the Ten Commandments, especially the last six of them. I reject the currently fashionable notion that religion per se breeds violence. In fact, a scholarly, non-sectarian meta-study, “Religion and its effects on crime and delinquency” (Medical Science Monitor, 2003; 9(8):SR79-82), offers good evidence that religiosity leads to good behavior:

[N]early all [reports] found that that there was a significant negative correlation between religiosity and delinquency. This was further substantiated by studies using longitudinal and operationally reliable definitions. Of the early reports which were either inconclusive or found no statistical correlation, not one utilized a multidimensional definition or any sort of reliability factor. We maintain that the cause of this difference in findings stemmed from methodological factors as well as different and perhaps flawed research strategies that were employed by early sociological and criminological researchers.The studies that we reviewed were of high research caliber and showed that the inverse relationship [between religiosity and delinquency] does in fact exist. It therefore appears that religion is both a short term and long term mitigat[o]r of delinquency.

But a society in which behavior is guided by the Ten Commandments seems to be receding into the past. Consider the following statistics, from the 2011 Statistical Abstract, Table 75. Self-Described Religious Identification of Adult Population: 1990, 2001 and 2008.
Between 1990 and 2008

the percentage of American adults claiming to be Christian dropped from 86 to 76,

the percentage of American adults claiming to be Jewish dropped from 1.8 to 1.2 percent, and

the percentage of American adults professing no religion rose from 8 to 15 percent.

What is noteworthy about those figures is the degree of slippage in a span of 18 years. And the degree of religious belief probably is overstated because respondents tend to say the “right” thing, which (oddly enough) continues to be a profession of religious faith.

Moreover, claiming adherence to a religion and receiving religious “booster shots” through regular church attendance are two entirely different things. Consider this excerpt of “In Search of the Spiritual” (Newsweek, August 28, 2005):

…Of 1,004 respondents to the NEWSWEEK/Beliefnet Poll, 45 percent said they attend worship services weekly, virtually identical to the figure (44 percent) in a Gallup poll cited by Time in 1966. Then as now, however, there is probably a fair amount of wishful thinking in those figures; researchers who have done actual head counts in churches think the figure is probably more like 20 percent. There has been a particular falloff in attendance by African-Americans, for whom the church is no longer the only respectable avenue of social advancement, according to Darren Sherkat, a sociologist at Southern Illinois University. The fastest-growing category on surveys that ask people to give their religious affiliation, says Patricia O’Connell Killen of Pacific Lutheran University in Tacoma, Wash., is “none.” But “spirituality,” the impulse to seek communion with the Divine, is thriving. The NEWSWEEK/Beliefnet Poll found that more Americans, especially those younger than 60, described themselves as “spiritual” (79 percent) than “religious” (64 percent). Almost two thirds of Americans say they pray every day, and nearly a third meditate.

But what does “spirituality” have to do with morality? Prayer and meditation may be useful and even necessary to religion, but they do not teach morality. Substituting “spirituality” for Judeo-Christian religiosity is like watching golf matches on TV instead of playing golf; a watcher can talk a good game but cannot play the game very well, if at all.

Historian Niall Ferguson, a Briton, writes about the importance of religiosity in “Heaven knows how we’ll rekindle our religion, but I believe we must” (July 31, 2005):

I am not sure British people are necessarily afraid of religion, but they are certainly not much interested in it these days. Indeed, the decline of Christianity — not just in Britain but across Europe — stands out as one of the most remarkable phenomena of our times.

There was a time when Europe would justly refer to itself as “Christendom.” Europeans built the Continent’s loveliest edifices to accommodate their acts of worship. They quarreled bitterly over the distinction between transubstantiation and consubstantiation. As pilgrims, missionaries and conquistadors, they sailed to the four corners of the Earth, intent on converting the heathen to the true faith.

Now it is Europeans who are the heathens. . . .

The exceptionally low level of British religiosity was perhaps the most striking revelation of a recent … poll. One in five Britons claim to “attend an organized religious service regularly,” less than half the American figure. [In light of the relationship between claimed and actual church attendance, discussed above, the actual figure for Britons is probably about 10 percent: ED.] Little more than a quarter say that they pray regularly, compared with two-thirds of Americans and 95 percent of Nigerians. And barely one in 10 Britons would be willing to die for our God or our beliefs, compared with 71 percent of Americans. . . .

Chesterton feared that if Christianity declined, “superstition” would “drown all your old rationalism and skepticism.” When educated friends tell me that they have invited a shaman to investigate their new house for bad juju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me as much as the moral vacuum that de-Christianization has created. Sure, sermons are sometimes dull and congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine helps to provide an ethical framework for life. And it is not clear where else such a thing is available in modern Europe.

…Britons have heard a great deal from Tony Blair and others about the threat posed to their “way of life” by Muslim extremists such as Muktar Said Ibrahim. But how far has their own loss of religious faith turned Britain into a soft target — not so much for the superstition Chesterton feared, but for the fanaticism of others?

Yes, what “way of life” is being threatened — and is therefore deemed worth defending — when people do not share a strong moral bond?

I cannot resist adding one more quotation in the same vein as those from Hayek and Ferguson. This comes from Theodore Dalrymple (Anthony Daniels), a no-nonsense psychiatrist who, among his many intellectual accomplishments, has thoroughly skewered John Stuart Mill’s fatuous essay, On Liberty. Without further ado, here is Dalrymple on religion:

I remember the day I stopped believing in God. I was ten years old and it was in school assembly. It was generally acknowledged that if you opened your eyes while praying, God flew out of the nearest window. That was why it was so important that everyone should shut his eyes. If I opened my eyes suddenly, I thought, I might just be quick enough to catch a glimpse of the departing deity….

Over the years, my attitude to religion has changed, without my having recovered any kind of belief in God. The best and most devoted people I have ever met were Catholic nuns. Religious belief is seldom accompanied by the inflamed egotism that is so marked and deeply unattractive a phenomenon in our post-religious society. Although the Copernican and Darwinian revolutions are said to have given man a more accurate appreciation of his true place in nature, in fact they have rendered him not so much anthropocentric as individually self-centred….

[T]he religious idea of compassion is greatly superior, both morally and practically, to the secular one. The secular person believes that compassion is due to the victim by virtue of what he has suffered; the religious person believes that compassion is due to everyone, by virtue of his humanity. For the secular person, man is born good and is made bad by his circumstances. The religious person believes man is born with original sin, and is therefore imperfectible on this earth; he can nevertheless strive for the good by obedience to God.

The secularist divides humanity into two: the victims and the victimisers. The religious person sees mankind as fundamentally one.

And why not? If this life is all that you have, why let anything stand in the way of its enjoyment? Most of us self-importantly imagine that the world and all its contrivances were made expressly for us and our convenience….

The secularist de-moralises the world, thus increasing the vulnerability of potential victims and, not coincidentally, their need for a professional apparatus of protection, which is and always will be ineffective, and is therefore fundamentally corrupt and corrupting.

If a person is not a victim pure and simple, the secularist feels he is owed no compassion. A person who is to blame for his own situation should not darken the secularist’s door again: therefore, the secularist is obliged to pretend, with all the rationalisation available to modern intellectuals, that people who get themselves into a terrible mess – for example, drug addicts – are not to blame for their situation. But this does them no good at all; in fact it is a great disservice to them.

The religious person, by contrast, is unembarrassed by the moral failings that lead people to act self-destructively because that is precisely what he knows man has been like since the expulsion from Eden. Because he knows that man is weak, and has no need to disguise his failings, either from himself or from others, he can be honest in a way that the secularist finds impossible.

Though I am not religious, I have come to the conclusion that it is impossible for us to live decently without the aid of religion. That is the ambiguity of the Enlightenment. (“Why Religion Is Good for Us,” NewStatesman, April 21, 2003)

The weakening of the Judeo-Christian tradition in America is owed to enemies within (established religions trying in vain to be “relevant”) and to enemies without (leftists and nihilistic libertarians who seek every opportunity to denigrate religion). Thus the opponents of religiosity seized on the homosexual scandals in the Catholic Church not to attack homosexuality (which would go against the attackers’ party line) but to attack the Church, which teaches the immorality of the acts that were in fact committed by a relatively small number of priests. (See “Priests, Abuse, and the Meltdown of a Culture,” National Review Online, May 19, 2011.)

Then there is the relentless depiction of Catholicism as an accomplice to Hitler’s brutality, about which my son writes in his review of Rabbi David G. Dalin’s The Myth of Hitler’s Pope: How Pius XII Rescued Jews from the Nazis:

Despite the misleading nature of the controversy — one which Dalin questions from the outset — the first critics of the wartime papacy were not Jews. Among the worst attacks were those of leftist non-Jews, such as Carlo Falconi (author of The Silence of Pius XII), not to mention German liberal Rolf Hochhuth, whose 1963 play, The Deputy, set the tone for subsequent derogatory media portrayals of wartime Catholicism. By contrast, says Dalin, Pope Pius XII “was widely praised [during his lifetime] for having saved hundreds of thousands of Jewish lives during the Holocaust.” He provides an impressive list of Jews who testified on the pope’s behalf, including Albert Einstein, Golda Meir and Chaim Weizmann. Dalin believes that to “deny and delegitimize their collective memory and experience of the Holocaust,” as some have done, “is to engage in a subtle yet profound form of Holocaust denial.”

The most obvious source of the black legend about the papacy emanated from Communist Russia, a point noted by the author. There were others with an axe to grind. As revealed in a recent issue of Sandro Magister’s Chiesa, liberal French Catholic Emmanuel Mounier began implicating Pius XII in “racist” politics as early as 1939. Subsequent detractors have made the same charge, working (presumably) from the same bias.

While the immediate accusations against Pius XII lie at the heart of Dalin’s book, he takes his analysis a step further. The vilification of the pope can only be understood in terms of a political agenda — the “liberal culture war against tradition.” . . .

Rabbi Dalin sums it up best for all people of traditional moral and political beliefs when he urges us to recall the challenges that faced Pius XII in which the “fundamental threats to Jews came not from devoted Christians — they were the prime rescuers of Jewish lives in the Holocaust — but from anti-Catholic Nazis, atheistic Communists, and… Hitler’s mufti in Jerusalem.”

I believe that the incessant attacks on religion have helped to push people — especially young adults — away from religion, to the detriment of liberty. It is not surprising that “liberals” tend to be anti-religious, for — as Dalrymple points out — they disdain the tenets of personal responsibility and liberty that are contained in the last six of the Ten Commandments. It is disheartening, however, when libertarians join the anti-religious chorus. They know not what they do when they join the left in tearing down a bulwark of civil society, without which liberty cannot prevail.

Humans need no education in aggression and meddling; those come to us naturally. But we do need to learn to take responsibility for our actions and to leave others alone — and we need to learn those things when we are young. Such things will not be taught in public schools. They could be taught in homes, but are less likely to be taught there as Americans drift further from their religious roots.

Am I being hypcritical because I am unchurched and my children were not taken to church? Perhaps, but my religious upbringing imbued in me a strong sense of morality, which I tried — successfully, I think — to convey to my children. But as time passes the moral lessons we older Americans learned through religion will attenuate unless those lessons are taught, anew, to younger generations.

Rather than join the left in attacking religion and striving to eradicate all traces of it from public discourse, libertarians ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

America, Love It or Leave It?

In a truly consensual society, where everyone must agree beforehand to rules that can affect everyone, even a (potential) offender can agree beforehand to punishment for certain acts. Take reckless driving, for instance. Even a person who becomes reckless behind the wheel can agree that recklessness endangers lives (including his own) and ought to be deterred by non-trivial punishment of some kind (a steep fine, some jail time, etc.) The person who is prone to be reckless driving may be chagrined and angry at being caught and punished, but he cannot say that he didn’t consent to the punishment.

The problem is that a truly consensual society is unlikely to be very large. Quoting from “The Golden Rule and the State”:

Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons.

That observation suggests an experiment in government (one that is unlikely to be allowed), which I discuss in “Zones of Liberty”:

A zone of liberty would be something like a “new city” — with a big difference. Uninhabited land would be acquired by a wealthy lover (or lovers) of liberty, who would establish a development authority for the sole purpose of selling the land in the zone. The zone would be populated initially by immigrants from other parts of the United States. [This is followed by a detailed description of political arrangements in zones of liberty, and arrangements with federal, State, and local governments.]

A person’s ability to opt out of undesirable governance was much greater when the federal government remained (somewhat) within its constitutional bounds, back in the 19th century. The open frontier also helped, because a person or group could simply pack up and go in search of a more congenial place — often one without a pre-existing government or a with a government that was distant and inattentive to remote goings-on.

America today is not a voluntary community by any stretch of the imagination. Given the vast, unconstitutional powers assumed by the federal government in the past 100 years (it all goes back to Teddy Roosevelt) — and the mimicking of those powers by most State and large municipal governments (often coerced mimicry, but mimicry nonetheless) — most Americans who oppose overwhelming government have no place to go, because the cost of going is extremely high, in terms of income and ties of family and friendship.

In effect, we Americans have become hostages in our own land. (On that point, see “Law and Liberty,” and a follow-up post, “The Real Constitution and Civil Disobedience.”) Why? Because the Constitution, which was designed (in part) to protect minorities from the tyranny of the majority, has been perverted to enable coalitions of minorities to run roughshod over the “silent majority” and, ironically, each other to some extent. (See “The Interest-Group Paradox.”)

Government in the U.S. now resembles the gangster who makes an offer that his victim can’t refuse. American’s can’t refuse government’s “offer” for the reason that the gangster’s victim can’t: the vastly superior firepower of the government/gangster. Some might say that the gangster’s victim tacitly agrees to pay for “protection.” I wouldn’t say that. I’d say that he’s been extorted. Similarly, Americans have been extorted by gangster governments that have, for practical purposes, cut off all but a few escape routes, and those are open only to the relatively small number of persons who can afford to traverse them.

I agree tacitly and explicitly to the Constitution. I disagree explicitly with what it has become in the hands of rapacious interest groups and power-hungry politicians.

It seems that most Americans agree with me: “New Low: 17% Say U.S. Government Has Consent of the Governed” (from Rasmussen Reports). But many (most?) of them are hypocrites whose idea of “consent” is that others should “consent” to their power- and money-lust.

Rethinking the Constitution: “Freedom of Speech, and of the Press”

UPDATED 07/21/11

My complete re-thinking of the Constitution is here. This post focuses on the much-abused First Amendment, specifically, “freedom of speech, and of the press.” Contrary to the current state of constitutional jurisprudence, these “freedoms” do not comprise an absolute license to “express” almost anything, regardless of the effects on the social fabric and national defense.

One example of misguided absolutism is found in Snyder v. Phelps, a case recently and wrongly decided by the U.S. Supreme Court. This is from “The Burkean Justice” (The Weekly Standard, July 18, 2011):

When the Supreme Court convened for oral argument in Snyder v. Phelps, judicial formalities only thinly veiled the intense bitterness smoldering among the parties and their supporters. At one table sat counsel for Albert Snyder, father of the late Marine Lance Corporal Matthew Snyder, who was killed in al Anbar Province, Iraq. At the other sat Margie Phelps, counsel for (and daughter of) Fred Phelps, whose notorious Westboro Baptist Church descended upon Snyder’s Maryland funeral, waving signs bearing such startlingly offensive slogans as “Thank God for IEDs,” “God Hates Fags,” and “Thank God for Dead Soldiers.” A federal jury had awarded Snyder nearly $11 million for the “severe depression” and “exacerbated preexisting health conditions” that Phelps’s protest had caused him.

In the Supreme Court, Phelps argued that the jury’s verdict could not stand because the First Amendment protected Westboro’s right to stage their protest outside the funeral. As the Court heard the case on a gray October morning, Westboro protesters marched outside the courthouse, informing onlookers that God still “Hates Fags” and advising them to “Pray for More Dead Soldiers.”

Amidst that chaos, the Court found not division, but broad agreement. On March 2, 2011, it held that Westboro’s slurs were protected by the First Amendment, and that Snyder would receive no compensation, let alone punitive damages, for the emotional injuries that he had suffered. Chief Justice John Roberts wrote the Court’s opinion, speaking for all of his brethren, conservatives and liberals alike—except one.

Justice Samuel Alito rejected the Court’s analysis and wrote a stirring lone dissent. “The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Repeatedly characterizing Westboro’s protest as not merely speech but “verbal assaults” that “brutally attacked” the fallen Snyder and left the father with “wounds that are truly severe and incapable of healing themselves,” Justice Alito concluded that the First Amendment’s text and precedents did not bar Snyder’s lawsuit. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims. . . . I therefore respectfully dissent.”

There is more:

Snyder v. Phelps would not be the last time that Alito stood nearly alone in a contentious free speech case this term. Just weeks ago, as the Court issued its final decisions of the term, Alito rejected the Court’s broad argument that California could not ban the distribution of violent video games without parental consent. Although he shared the Court’s bottom-line conclusion that the particular statute at issue was unconstitutional, he criticized the majority’s analysis in Brown v. Entertainment Merchants Association as failing to give states and local communities latitude to promote parental control over children’s video-game habits. The states, he urged, should not be foreclosed from passing better-crafted statutes achieving that legitimate end.

Moreover, Alito’s opinions in those cases followed a solo dissent late in the previous term, in United States v. Stevens, where eight of the nine justices struck down a federal law barring the distribution of disturbing “crush videos” in which, for example, a woman stabs a kitten through the eye with her high heel, all for the gratification of anonymous home audiences….

The source of Alito’s positions:

[T]hose speculating as to the roots of Alito’s jurisprudence need look no further than his own words—in public documents, at his confirmation hearing, and elsewhere. Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice….

A review of Alito’s Snyder, Brown, and Stevens opinions quickly suggests the common theme: Alito, more than any of his colleagues, would not allow broad characterizations of the freedom of speech effectively to immunize unlawful actions. He sharply criticized the Court for making generalized pronouncements on the First Amendment’s reach, when the Court’s reiterations of theory glossed over the difficult factual questions that had given rise to regulation in the first place—whether in grouping brutal verbal attacks with protected political speech; or in equating interactive Duke Nukem games with the text of Grimm’s Fairy Tales; or in extending constitutional protection to the video of women illegally crushing animals. And Alito was particularly sensitive to the Court’s refusal to grant at least a modicum of deference to the local communities and state officials who were attempting to protect their populations against actions that they found so injurious as to require state intervention….

The ability of the press to undermine national defense with impunity was established in World War II and was ratified the Iraq War. Here is one example, from 2005, courtesy of Winds of Change:

Today’s New York Times provides intimate detail on the charter flights used by the CIA to ferry prisoners across the globe. The names of the charter companies are disclosed. The types of aircraft flown are revealed. The points of departure and destinations of these flights are stated. There is even a picture of one of the charter craft, with the identification number of the aircraft in full display. All of this is extremely valuable to al Qaeda members who may have an interest in rescuing, or if deemed appropriate, conducting a suicide attack against suspected extraction flights. A successful attack resulting from this story can endanger the lives of CIA, security and civilian personnel involved in these missions, as well as deprive the intelligence and military communities of valuable information that can be gained from interrogations….

What exactly is the purpose of the New York Times in reporting on sensitive issues such as these? Do they even care about the consequences of making such information pubic? It appears the editors of the New York Times feel that breaking a titillating story about sensitive CIA operations is much more important than national security and the lives of those fighting in the war. All to our detriment.

Ann Coulter reminds us of other examples:

[I]n 2006 the Times published illegally leaked classified documents concerning a government program following terrorists’ financial transactions; … in 2005 it revealed illegally obtained information about a top-secret government program tracking phone calls connected to numbers found in Khalid Sheikh Mohammed’s cell phone….

If the Times‘s reporting is not “aid and comfort” to the enemy, what is? As I wrote here:

The preservation of life and liberty necessarily requires a willingness to compromise on what — in the comfortable world of abstraction — seem to be inviolable principles. For example:

The First Amendment doesn’t grant anyone the right to go on the air to compromise a military operation by American forces…

The NYT article about a CIA operation being conducted in support of an authorized war amounts to the same thing. The right to publish cannot be absolute and should not exempt anyone from a charge of treason.

A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. My copy is now in someone else’s hands, so I must rely on Edward J. Erler’s review of the book:

Liberty is lost when the law allows “freedom of speech, and of the press” to undermine the civil and state institutions that enable liberty.

See also “The Constitution: Myths and Realities“.

Saving the Innocent

Paul Compos, writing at The New Republic, celebrates “The American Justice System at Its Best“:

[I]t’s reasonable to argue that the acquittal of Casey Anthony … represent[s] … the system working as it should. But accepting that argument requires acknowledging deep imperfections that our legal system must tolerate, even when it does exactly what it’s supposed to do.

The most disturbing of these inevitable imperfections is a product of our supposed commitment to the principle that we prefer a large number—whether it’s 10, 50, or 100, the precise number is never clearly stated—of guilty people going free to the conviction of an innocent defendant. That is the practical significance of requiring the state to prove guilt “beyond a reasonable doubt”—a standard that, interestingly, the system always avoids defining in any but the most general, non-statistical terms….

[In Anthony’s case] The state proved beyond a reasonable doubt that a two-year-old child was murdered, and that her mother was, at the least, a deeply irresponsible parent with a propensity to lie to authorities. The prosecution also demonstrated, in my view, that it is far more likely than not that Anthony committed the crime. But I also believe the jury’s verdict was correct….

The case against Anthony was largely circumstantial, buttressed by arguably—yet only arguably—strong forensic evidence. But the prosecution was hampered by its inability to provide a compelling narrative explaining either how Caylee Anthony was killed or why her mother purportedly murdered her. This failure was not, as far as we know, a product of prosecutorial incompetence. The hard truth is that it is extremely difficult to successfully prosecute a murder under these kinds of circumstances—and the harder truth is that we are supposedly committed to the principle that this is, on the whole, a good thing.

Or is it? Compos refers to the dictum of the noted English jurist, William Blackstone:

Better that ten guilty persons escape than that one innocent suffer.

“n” — the number of guilty persons — has increased since the late 1700s, when Blackstone wrote. Alexander “Sasha” Volokh offers some useful perspective:

Charles Dickens generously endorsed a value of n = “hundreds” for capital cases, and not just “that hundreds of guilty persons should escape,” but that they should escape “scot-free.” 99 Dickens was, in fact, so generous that hundreds of guilty persons escaping scot-free was not only better than one innocent person suffering — it was even better “than that the possibility of any innocent man or woman having been sacrificed, should present itself, with the least appearance of reason, to the minds of any class of men!” 100….

Of course, such blithe invocation could easily lead too far down the road to “inconsiderate folly” and “pestiferous nonsense.” As one author noted, there is “nothing so dangerous as a maxim”: 107

Better that any number of savings-banks be robbed than that one innocent person be condemned as a burglar! Better that any number of innocent men, women, and children should be waylaid, robbed, ravished, and murdered by wicked, wilful, and depraved malefactors, than that one innocent person should be convicted and punished for the perpetration of one of this infinite multitude of crimes, by an intelligent and well-meaning though mistaken court and jury! Better any amount of crime than one mistake in well-meant endeavors to suppress or prevent it! 108….

Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished. 128 ….

James Fitzjames Stephen suggested that Blackstone’s maxim

resembles a suggestion that soldiers should be armed with bad guns because it is better that they should miss ten enemies than that they should hit one friend. . . . Everything depends on what the guilty men have been doing, and something depends on the way in which the innocent man came to be suspected. 134….

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” 238

That is the question: Better for whom? It is better for the guilty, who may claim more victims, but it certainly is not better for those new victims.

Liberty Is Dead, Just Not Buried Yet

UPDATED 07/13/11

Quoted in “DC Park Police Gestapo Violate First Amendment”

“On June 22, 2011, I attended a meeting of the D.C. Taxi Commission for a story I’m currently working on about a proposed medallion system in the district. About half-an-hour into the meeting, I witnessed journalist Pete Tucker snap a still photo of the proceedings on his camera phone. A few minutes later, two police officers arrested Tucker. I filmed Tucker’s arrest and the audience’s subsequent outrage using my iphone.

A few minutes later, as I was attempting to leave the building, I overheard the female officer who had arrested Tucker promise a woman, who I presumed to be an employee of the Taxi Commission, that she would confiscate my phone. Reason intern Kyle Blaine, overheard her say, “Do you want his phone? I can get his phone.” (The woman who was given assurances by the officer that she could have my phone can be seen at the end of the video telling me, “You do not have permission to record this!”)

As I tried to leave, I was told by the same blond female officer to “stay put.” I told her I was leaving and attempted to exit the building. I was then surrounded by officers, and told to remain still or I would be arrested. I didn’t move, but I tried to get the attention of a group of cab drivers who were standing nearby. At this point I was arrested. I spent the remainder of the day in a cell in the basement of the building. I was released at about 4PM.”

Items from “Are We Seeing More Moves to Muzzle Free Speech in America?”

A woman was kicked off a U.S. Airways flight after being deemed a “security risk,” purportedly because she took a photograph of the name tag of an airline employee she felt was being rude. (Did the employee or the airline really expect this “muzzling” incident to go away quietly?)

Drivers in Tennessee must now be extra cautious about the content of their bumper stickers. According to WKRN in Nashville, “Drivers caught with obscene or patently offensive bumper stickers, window signs or other markings on their vehicle visible to other drivers face an automatic $50 fine.” And exactly who will be the judge regarding what stupid couplet is “patently offensive”? (And what do the offended do? Tail the tasteless offenders so closely—just so all the words/images are properly catalogued or photographed—that an accident ensues?)

One can‘t be completely sure what political camp was more pleased by MSNBC’s decision to indefinitely suspend Time editor Mark Halperin for calling President Obama a nasty name during a broadcast of “Morning Joe”—-left-wingers upset at the insult…or right-wingers upset by the word choice itself. Wherever you stand on that continuum, the incident should stoke free-speech debate and get at the heart of whether or not the cable network is muzzling one of its own, rightly or wrongly.

Quoted in “A Permanent Threat to Religious Freedom“:

Same-sex marriage does not simply include more people in the definition of civil marriage; it labels the natural understanding of marriage as a form of irrational prejudice, ignorance, bigotry, and even hatred. In other words, same-sex-marriage laws teach the public that people who view marriage in the natural way are morally equivalent to racists.

Once this idea is embedded in the law, there will be enormous pressure to take it to its logical conclusion by marginalizing and penalizing people who continue to think marriage is one man and one woman. Some of this pressure will come from state sources and some will come from private sources, but in both cases it will find ways through whatever cracks might exist in protections for religious and moral conscience.

These stories just happened to catch my eye today. I’ve been seeing a lot of stories like theme of late — and with increasing frequency, it seems to me.

What does it all mean? It means that the delicate balance between liberty and order may have tipped decisively in the direction of order. But it is not the voluntary order that arises from civil society’s observance of shared norms. It is the oppressive order that comes when the state usurps the role of civil society, and the minions of the state are licensed to impose their will on the details of our lives.

UPDATE: The readiness of “do gooders” to propose new impositions testifies to the state’s vast power:

As the Western world gets fatter and fatter, the solutions to slimming it down get ever more draconian. In Britain yesterday, the government issued guidelines saying “children under the age of 5, including babies who can’t walk yet, should exercise every day.” Today, in the States, a pair of Harvard scholars writing in the Journal of the American Medical Association advocate stripping away the custody rights of parents of super obese children. They’re for real!

Questioning the National Debt

There is a laughable proposition — advanced by Treasury secretary Timothy Geithner, among others — that Congress may not limit the national* debt. This proposition is based on a skewed reading of Section 4 of Amendment XIV to the Constitution. That amendment was approved by Congress in 1866 and ratified in 1868.

Here is Section 4, in full:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The first sentence — the “authority” for Geithner’s proposition — simply means that the government of the United States cannot repudiate indebtedness it has already incurred. The obvious purpose of the first sentence was to prevent future Congresses — which might be controlled by Democrats — from reneging on obligations incurred by the winning (mainly Republican**) side in the Civil War.

Putting a legal limit on the issuance of debt is not the same thing as repudiating debt already incurred. A limit on the amount of debt that the government may issue is the equivalent of stop sign; it means that the government must take steps to prevent the net accumulation of additional debt. It is up to Congress to determine the precise steps — some combination of tax increases and spending reductions — or to “repudiate” the debt ceiling by raising or eliminating it.

A responsible Congress would take steps to ensure against the growth of the debt by reducing commitments to the growth of “entitlement” programs: Social Security, Medicare, and Medicaid. Those reductions are necessary — for the sake of America’s future — whether or not there is a debt ceiling. One could even argue that the existence of a debt ceiling — one that is always somewhat higher than the current level of debt — has encouraged Congress to make irresponsible spending commitments.

__________
* The so-called national debt is, in fact, the indebtedness of the government of the United States. It arises from the actions of that government, not from the private actions of individuals. It is “national” only in the sense that the taxpayers of the nation are ultimately responsible for repayment of the debt and interest thereon.

** The Civil War was partisan as well as sectional. The 36th Congress, which was in session before the outbreak of the war, was divided as follows: 116 Republicans to 83 Democrats in the House; 26 Republicans to 38 Democrats in the Senate. Because of the war, and losses of seats by seceding States, the Republican Party held a firm grip on Congress in 1866: 136 Republicans to 38 Democrats in the House; 39 Republicans to 11 Democrats in the Senate.

Related reading:
Debt-Limit Silliness, at NRO (follow the links)
We Cannot Pretend the Debt Ceiling Is Unconstitutional, at The NYT (straight talk from a leftist, of all things)

A Declaration of Civil Disobedience

I hereby declare to the people of the United States and to the governments thereof that

The ratification of the Constitution of the United States resulted in the establishment a government of the United States (the central government) for the purposes of making, executing, and adjudicating laws. The Constitution and all laws made in accordance with it are the supreme law of the land. However, the legislative, executive, and judicial branches of the central government have abused their powers by making, executing, and upholding laws contrary to the Constitution; for example:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for no other purpose.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed unelected, executive-branch regulators to legislate on myriad matters affecting the liberty and property of Americans.

Article I, Section 8, enumerates the specific powers of Congress, which do not include such things as establishing and operating national welfare and health-care programs; intervening in the education of America’s children; regulating interstate commerce beyond ensuring its free flow; regulating intrastate commerce and private, non-commercial transactions; lending money and guaranteeing loans made by quasi-governmental institutions and other third parties; acquiring the stock and debt of business enterprises; establishing a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions; and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money. (The notion that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in No. 41 of the Federalist Papers, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.)

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the central government to interfere in private contracts. Yet, directly and through the States, the central government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech — our most precious kind — by passing bills that have been signed into law by presidents of the United States and, in the main, upheld by the Supreme Court of the United States.

Amendment IX of the Constitutions provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe one of our time-honored freedoms: the freedom of association.

As outlined above, the central government routinely and massively violates Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Legislative, executive, and judicial acts of the central government have perverted the meaning of Amendments XIII, XIV, and XV — which properly abolished slavery and outlawed racial discrimination by government — to require discrimination on behalf of certain “protected groups” designated by law, to the detriment of groups not thus favored.

These and other abuses of power by the central government are grounds for civil disobedience, at the least, and secession, in the extreme.

With regard to secession, there is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1868) — that the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning — if it may be called that — is born of mysticism, not legality. Similar reasoning might have been used — and was used — to proclaim the Colonies inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the several States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted specific, limited powers to it. The people of the States that effected the Constitution were led to understand that the central government would exercise only its specified powers, and then only for the general well-being of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the union null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of its people.

Three facts militate against secession as a remedy for the central government’s abuse of power. First, many of the States (and political subdivisions thereof), having long subscribed to the unconstitutional acts of the central government and engaged in unconstitutional acts of their own devising, are complicit in the central government’s breach of trust and abuse of power. Second, the States and their people have much to gain by remaining joined in union: mutual defense and the free movement of people, goods, and services among the States. Third, because the central government has acquired overwhelming might, and because that might would no doubt be used to suppress secession, it would be sheer folly to secede — despite the moral and legal rightness of doing so.

The only practical alternative to secession is civil disobedience, which may be practiced by individuals. Accordingly, I do solemnly offer the following declaration of civil disobedience:

I affirm my allegiance to the Constitution of the United States, and hereby pledge to do what I can to preserve, protect, and defend it against all its enemies, foreign and domestic.

The central government of the United States, through prolonged and egregious abuses of its delegated powers, has proved itself an enemy of the Constitution, as have many State and local governments. All such governments — central, State, and local — are enemies of the Constitution, and of the people.

A citizen of the United States owes no allegiance to an enemy, and is bound by conscience to thwart the enemy’s efforts to destroy liberty in the land.

Any citizen may therefore refuse peacefully to comply with the unconstitutional laws, regulations, executive orders, and judicial holdings of government — central, State, or local — at times and places of his choosing.

Done, on this Fourth Day of July, in the Year of Grace 2011.

See “The Constitution: Myths and Realities“.

The Destruction of Society in the Name of “Society”

Society cannot exist where the state interferes with and usurps societal functions.

What is society? In an earlier post, I quoted Roger Scruton’s An Intelligent Person’s Guide to Modern Culture:

…Ferdinand Tönnies … formulated a distinction between two kinds of society — Gemeinschaft and Gesellschaft — the first based in affection, kinship and historic attachment, the second in division of labour, self-interest and free association by contract and exchange. Traditional societies, he argued, are of the first kind, and construe obligations and loyalties in terms of a non-negotiable destiny. Modern societies are of the second kind, and therefore regard all institutions and practices as provisional, to be revised in the light of our changing requirements. The transition from Gemeinschaft to Gesellschaft is part of what happened at the Enlightenment, and one explanation for the vast cultural changes, as people learned to view their obligations in contractual terms, and so envisage a way to escape them.

Max Weber wrote, in the same connection, of a transition from traditional to “legal-rational” forms of authority, the first sanctioned by immemorial usage, the second by impartial law. To these two distinctions can be added yet another, du to Ser Henry Maine, who described the transition from traditional to modern societies as a shift from status to contract — i.e., a shift from inherited social position, to a position conferred by, and earned through, consent. (p. 24)

Note the important qualifiers that attach to modern, contractarian societies: free association by contract and exchange; impartial law. What we have in the United States — and in most Western nations — is not society, not even Gesellschaft. That is because

Religion, community, and common culture have been displaced by the regulatory-welfare state, anthropogenic global warming, feminism, “choice,” and myriad other totems, beliefs, “movements,” and “leaders,” both religious and secular.

Freedom of association and impartial law, to the extent that they once existed in the United States, have been in decline for more than a century. Yes, yes, I know about the better lot of blacks and women, but those have been achieved to a large extent by forced association and partial law, which — in the long run — do more harm than good because they break the bonds of mutual trust and respect upon which civil society depends for self-enforcing, mutually beneficial behavior. Even a contractarian society cannot function effectively without bonds of trust and respect, lacking as it does the bonds of religion, community, and common culture.

Despite the almost complete destruction of society by the state, there are those who believe that society survives because it is embodied in the state. For such believers, society is not a network of personal associations built upon religion, community, and common culture. Rather, it is an abstraction of their imagining, and it consists of classes of individuals toward whom something is “owed”: the aged, the infirm, persons of color, Latinos, women, homosexuals, and — above all — the “poor,” who are always with us because poverty (in the mind of the “socially conscious”) is a relative thing.

It is this very urge to burden everyone with responsibility for everyone else that led to the growth of the state and the virtual destruction of society. The urge manifests itself, time and again, when the political classes (in and out of government) — claiming to act on behalf of “society’s victims” — invoke “social justice” as they make the case for the expansion of the state. The ultimate irony is that the expansion of the state commits injustice, undermines society, and creates more victims for whom the political classes can shed more crocodile tears.

Corporations, Unions, and the State

When left-libertarians discuss right-to-work laws they claim to discern a pro-employer — specifically, pro-corporation — tilt on the part of government. I will not play the futile and foolish game of trying to disentangle the effects of decades’ worth of pro/anti/corporation/union enactments. My modest objective is to ask whether the corporation or the union (or both or neither) is inherently antilibertarian.

The question that libertarians (and pseudo–libertarians) ought to address are these:

Does corporate status per se enable an employer to coerce employees or prospective employees?

Does state-enforced recognition of labor unions by employers amount to coercion?

The obvious answer to the second question is “yes.” Apologists for labor unions will nevertheless assert that coercion by the state, which enables coercion by labor unions, is necessary to offset an “unnatural” advantage that accrues to an employer if the employer is a corporation?

What is that “unnatural” advantage? What power is bestowed by corporate status that is lacking in a sole proprietorship, partnership, or other non-corporate form of organization? It is said that corporate status involves two unique characteristics: perpetual existence and limited liability. Non-corporate organizations can enjoy the former easily enough, through bequests, property transfers, agreements that allow for the admission of new and/or replacement partners, and so on. These are simply contractual arrangements that do not require the state’s existence, except as a neutral enforcer of voluntary, non-fraudulent contracts between compos mentis adults. In sum, perpetual existence does not confer upon the corporation an “unnatural” advantage when it comes to dealing with employees and prospective employees.

What about limited liability? The key artificiality of limited liability is that it shifts the responsibility for debts from the directors, officers, and owners of the corporation to the corporation itself. But I fail to see how that artificiality plays into dealings with employees and prospective employees. In fact, the artificiality lends stability to the corporation, which is advantageous to employees and attractive to prospective employees.

Nor is it clear to me that the corporation could not exist in the absence of statutory approval. The corporation is usually considered a creature of the state — as if it could not exist absent statutory authority — simply because the earliest corporations were creatures of the state and often were instruments of state power. But there are other beneficial and “artificial” commercial arrangements (e.g., banking and credit) that began and thrived before the state injected itself into such arrangements. The advantages of corporate status — as a way of fostering commercial expansion — would, I think, be recognized in a common-law regime.

The bottom line on the corporation: It would exist in the absence of the state (or recognition by the state), and its essential features do not give it an “unnatural” advantage in dealings with employees and prospective employees.

I cannot say the same for the labor union, which exists by and for coercion. A union can exist without coercion, in certain limited circumstances, for example, an unskilled, fungible labor force whose members lack the means to uproot themselves from a relatively isolated location. (Think “Welsh coal miners,” for instance.)

But where there is a diverse labor force and diverse employment opportunities, it is not in the interest of the more skilled (or independent-minded) workers to cast their lot with their less-skilled brethren. Their interest is served by the ability to bargain for the best available combination of compensation and working conditions. The submission of highly skilled workers to unionization comes about mainly because (a) they have no legal option (in jurisdictions that back the union shop) and/or (b) “scabs” face threats ranging from harassment to ostracism to violence, directed not only at “scabs” but also at their families.

Employers, for the most part, view unionization as coercion. Yes, there is the occasional business that chooses to recognize a union, even if the business is not compelled to do so by statute. But recognition, in such cases, is the the free choice of the businesses in question. Most other businesses make the opposite choice, where they are allowed to do so. Nothing more need be said on that point.

In summary: The corporation is not a coercive institution; the labor union is. Right-to-work laws are justified on libertarian grounds because they eliminate the coercion of workers and employers.

Myopic Moaning about the War on Drugs

The pseudo-libertarian camp is on the warpath about the war on drugs and a resulting rate of incarceration that seem “too high,” relative to the rates in other Western nations. That other Western nations have different distributions of ethnicity and age than the U.S. is beside the point when one’s objective is to pummel the American legal system for prosecuting victimless crimes … blah, blah, blah. Drug-use is as victimless as suicide, except that a fair proportion of drug users and dealers do, in fact, victimize innocent bystanders. Drugs, like alcohol, lower a person’s inhibitions — often with destructive results — and the cost of drugs is often financed by theft and related violence.

Well, then, says the apologist for drug use, just legalize drugs and they will become affordable and the criminal element will be eliminated from the drug trade. The legalization of drugs will make them affordable only by those persons who can afford to pay the inevitably inflated prices that will result from government licensing of vendors, restrictions on the number and location of vendors, and restrictions on the amount of drugs an individual may purchase in a given period. (Regulation and paternalism go hand in hand.)

Of course, non-drug-using taxpayers could be required to subsidize drug users. But I doubt that such a proposition would get very much legislative support. As for the criminal element, government restrictions would open the door to a black market, operated by the usual suspects. In the meantime, drug-users would continue to expose themselves to the same inhibition-loosing effects, and many of them would still resort to crime to underwrite their drug intake.

Instead of blaming America’s “too high” incarceration rate on the war on drugs, a serious person would ask whether America’s incarceration rate has had an effect on the rate of violent and property crimes. Radley Balko comes close to the mark when he writes that

of the two causal explanations [of a drop in the crime rate] that have found the most support, one—the economy—had nothing to do with crime policy. The other, the petering out of the crack epidemic, was simply a return to normal after weathering the effects of a bad policy. Once distributors of the new drug had established turf, levels of violence returned to normal.

The only problem with Balko’s analysis is its incorrectness, which is driven (no doubt) by his pseudo-libertarian desire to castigate the government for prosecuting “victimless” crime.

In truth, according to my quantitative analysis — done almost four years ago — there are three measurable and significant determinants of violent and property crime: the percentage of black in the population, the rate of real growth in GDP, and the incarceration rate. (The fact that the analysis was done before the Great Recession counts in its favor, inasmuch that event would distort the relationship between crime and economic growth.) What follows are some key portions of the post that documents my earlier analysis.

* * *

Here’s a graphical depiction of the crime rates and all of the variables I considered:

Key: VIC, violent crimes per 100,000 persons; VPC, violent+property+crimes per 100,000 persons; BLK, blacks as a proportion of population; ENL (active-duty, male, enlisted personnel as a proportion of population aged 15-24; GRO(C), growth of real GDP per capita as a proxy for year-to-year growth (GRO) used in the regression analysis; PRS, prisoners in federal and State penitentiaries as a proportion of population; SNT, mandatory sentencing guidelines in effect (0 = no, 1 = yes); YNG, persons aged 15-24 as a proportion of population.

A few comments about each of the explanatory variables: BLK, unfortunately, stands for a segment of the population that has more than its share of criminals — and victims. Having more men in the armed forces (ENL) should reduce, to some extent, the number of crime-prone men in the civilian population…. I use the annual rate of real, per-capita economic growth (GRO) to capture the rate of employment — or unemployment — and the return on employment, namely, income. (The use of year-over-year growth vice cumulative growthavoids collinearity with the other variables.) PRS encompasses not only the effects of taking criminals off the streets, but the means by which that is done: (a) government spending on criminal justice and (b) juries’ and courts’ willingness to put criminals behind bars and keep them there for a good while. SNT ensures that convicted criminals are put away for a good while.

I focused on violent-plus-property crime (VPC) as the dependent variable, for two reasons. First, there is a lot more property crime than violent crime (VIC); that is, VPC is a truer measure of the degree to which crime affects Americans. Second, exploratory regression runs on VPC yielded more robust results than those on VIC.

Even at that, it is not easy to tease meaningful regressions from the data, given high correlations among several of the variables (e.g., mandatory sentencing guidelines and prison population, number of blacks and prison population, male enlistees and number of blacks). The set of six explanatory variables — taken one, two, three, four, five, and six at a time — can be used to construct 63 different equations. I estimated all 63, and rejected all of those that returned coefficients with counterintuitive signs (e.g., negative on BLK, positive on GRO).

Result and Discussion

Of the 63 equations, I chose the one that has the greatest number of explanatory variables, where the sign on every explanatory variable is intuitively correct, and — given that — also has the greatest explanatory power (as measured by its R-squared):

VPC (violent+property crimes per 100,000 persons) =

-33174.6

+346837BLK (number of blacks as a decimal fraction of the population)

-3040.46GRO (previous year’s change in real GDP per capita, as a decimal fraction of the base)

-1474741PRS (the number of inmates in federal and State prisons in December of the previous year, as a decimal fraction of the previous year’s population)

The t-statistics on the intercept and coefficients are 19.017, 21.564, 1.210, and 17.253, respectively; the adjusted R-squared is 0.923; the standard error of the estimate/mean value of VPC = 0.076.

The minimum, maximum, and mean values of the dependent and explanatory variables:

VPC: 1887, 5950, 4773 (violent-plus-property crimes/100,000 persons)

BLK: 0.1052, 0.1300, 0.1183 (blacks/population)

GRO: -0.02866, 0.06263, 0.02248 (growth in real GDP per capita during year n-1/real GDP per capita in year n-2)

PRS: 0.0009363, 0.004842, 0.002243 (federal and State prisoners in December of year n-1/average population in year n-1)

Even though the coefficient on GRO isn’t strongly significant, it isn’t negligible, and the sign is right — as are the signs on BLK and PRS. The sign on the intercept is counterintuitive — the baseline rate of crime could not be negative. The negative sign indicates the omission of key variables. But forcing variables into a regression causes some of them to have counterintuitive signs when they are highly correlated with other, included variables.

In any event, the equation specified above does a good job of explaining variations in the crime rate:

I especially like the fact that the equation accounts for two policy-related variables: GRO and PRS:

1. Crime can be reduced if economic growth is encouraged by rolling back tax rates. Crime will rise if growth is inhibited by raising tax rates (even for the very rich).

2. Crime can be reduced by increasing the rate at which it is prosecuted successfully, and by ensuring that prisoners do not receive lenient sentences. Therefore, we need to (a) spend even more on the pursuit of criminal justice and (b) restore mandatory sentencing guidelines, which had been in effect (and effective) from 1989 to 2004. (Look at the relationship between SNT and the indices of crime, in the next-to-last graph, and you will have no doubt that mandatory sentencing guidelines were effective and are represented in the equation — to some extent — by the variable PRS.)

ENL and YNG, like SNT, are key determinants of the crime rate. Each of the three variables appears, with the right sign, in many of the 63 equations. So, I am certainly not ruling out ENL and YNG as important variables. To the contrary, they are important variables. But, just as with SNT, I can’t satisfactorily quantify their importance because of the limitations of regression analysis.

Crime, then, depends mainly on two uncontrollable variables (BLK and YNG), and four controllable ones: ENL, GRO, PRS, and SNT. The controllable variables are salutary means of reducing crime, and the record shows that they work. Whatever else abortion is, it is not a crime-fighting tool; those who herald abortion as such are flirting with genocide.

What Is Justice?

Justice, at bottom, can only be revenge. Murder and mayhem cannot be undone or somehow ameliorated. The loss of a life, a limb, or an organ is permanent. Other injuries take time to heal, and may heal imperfectly; the healing time and its attendant costs are lost, in any event. Theft is rarely made whole.

Aside from the inculcation of morality, our surest protection from predation is the promise of swift and sure vengeance. When the state fails in its duty to exact that vengeance, it becomes illegitimate.

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