A Quotation to Ponder

Thanks to Samizdata.net for this:

Full government control of all activities of the individual is virtually the goal of both national parties.

–Ludwig von Mises, Economic Freedom and Interventionism

My take: The parties differ in the kinds of activities they would control, and the degree to which they would control them. Democrats would control economic activity (including almost anything remotely related to it), speech, association, and religion (the press gets a pass because it is Democrat-controlled). Beside that ambitious (and almost-accomplished) agenda, the GOP’s agenda is relatively anarchistic.

That said, I favor the GOP, mainly because it isn’t the Democrat Party. And there is far more hope of the GOP returning to the limited-government ethic of the Harding-to-Taft era than there is of the Democrats returning to the limited-government ethic of Grover Cleveland.

How to Combat Beauty-ism

Now that the seekers of cosmic justice have taken care of health inequalities by ensuring that everyone enjoys equally poor health under Obamcare, they are turning their attention to inequalities in beauty. Here’s the lowdown:

In her provocative new book, The Beauty Bias: The Injustice of Appearance in Law and Life, Stanford law professor Deborah Rhode argues that workers deserve legal protection against appearance-based discrimination unless their looks are directly relevant to their job performance….

Rhode convingingly [sic] argues that beauty bias in the workplace is a widespread problem with serious consequences. Between 12 and 14 percent of workers say they’ve suffered some kind of appearance-based discrimination on the job.

It should go without saying that discrimination on the basis of appearance is unjust, especially when it comes to features individuals have little or no control over. Rhode does a good job of spelling out why such bias is offensive to human dignity and equal opportunity.

If discrimination on the basis of appearance is unjust, then discrimination on the basis of intelligence and ability must also be unjust. A very high percentage of workers have been discriminated against on the basis if their lack of intelligence, and yet individuals have little or no control over their level of intelligence. Nor do they have much control of their ability to do things that require intelligence or other genetically determined traits (e.g., exceptional eyesight, exceptional height, perfect pitch).

Therefore, following Deborah Rhode’s logic, public and private institutions should not be able to discriminate on the basis of intelligence or ability (where it is genetically dependent). Professors, most athletes, most musicians, brain surgeons, and others whose occupations demand high intelligence and/or unusual physical abilities should be chosen by lottery. Think of Debora Rhode as you go under the knife.

Seriously (not), here is how the government should deal with the problem of beauty-ism:

1. Establish national standards of beauty. This should be done by an independent commission of experts appointed by the president, subject to confirmation by the ugliest members of the Senate.

2. Assign every person over the age of 16 a beauty rating, on a scale of 1 to 8 (“10” is such a cliché). This can be done at the time of the decennial census. It would require the abolition of the mail-in form in favor of visits to every dwelling place in America by teams of beauty judges who are trained and certified by the beauty commission. Refusal to be judged would be a felony, punishable by compulsory viewing of American Idol or similar fare, as determined by the beauty commission.

3. Determine the national distribution of beauty ratings. If the ratings are normally distributed, for example, they would occur with the following frequency per 1,000 persons: 1 = 1; 2 = 21; 3 = 136; 4 = 341; 5 = 341; 6 = 136; 7 = 21; 8 = 1 (distribution does not add to 1,000 because of rounding).

4. Require every employer (private and government) to maintain a workforce with a distribution of beauty ratings that matches the national distribution. Heads of private and government organizations (e.g., CEOs, the president, the speaker of the House) would be counted for purposes of determining compliance with the national average.

5. Give employers an opportunity to comply with the national distribution. In an arrangement similar to cap-and-trade for carbon emissions, employers could trade overly beautiful employees for underly beautiful ones. In a token bow to liberty, the terms of trade would be negotiated by the trading parties.

6. Punish employers who fail to bring their workforces into compliance with the national distribution by a date certain. Punishments would vary according to the degree of noncompliance. At a minimum, offenders would be forced to watch Dancing with the Stars. As for the most serious offenders, their personal beauty ratings would be lowered to 1, thus insulting 999 out of every 1,000 offenders and making it almost impossible for them to work anywhere. No exceptions would be made for high-ranking officials. (Note to Barack Obama, Harry Reid, and Nancy Pelosi: That means you.*)

Thus endeth today’s journey into the never-land of cosmic justice.

__________
* On the evidence of these portraits and photos of the presidents of the U.S., I conclude that average beauty rating for a president in the post-hirsute era (Wilson through Obama) is a below-average 4.4.

Cuccinelli for President?

The more I learn about Ken Cuccinelli, the attorney general of Virginia, the more depressed I become by the fact that he — or someone like him — isn’t in the White House.

For example, Cuccinelli’s office is investigating Michael “Hockey Stick” Mann, who (while at the University of Virginia) accepted State funds for his research. Here is part of the AG’s statement about the matter:

The revelations of Climate-gate indicate that some climate data may have been deliberately manipulated to arrive at pre-set conclusions. The use of manipulated data to apply for taxpayer-funded research grants in Virginia is potentially fraud. Given this, the only prudent thing to do was to look into it.

This is a fraud investigation and the attorney general’s office is not investigating Dr. Mann’s scientific conclusions. The legal standards for the misuse of taxpayer dollars apply the same at universities as they do at any other agency of state government. This is about rooting out possible fraud and not about infringing upon academic freedom.

That bare statement cries out for amplification. Here are portions of an analysis posted at Watt’s Up With That?:

Mann is the former UVA professor, whose “hockey stick” temperature chart was used to promote claims that “sudden” and “unprecedented” manmade global warming “threatens” human civilization and Earth itself. The hockey stick was first broken by climatologists Willie Soon and Sallie Baliunas, who demonstrated that a Medieval Warm Period and Little Ice Age were clearly reflected in historic data across the globe, but redacted by Mann. Analysts Steve McIntyre and Ross McKitrick later showed that Mann’s computer program generated hockey-stick patterns regardless of what numbers were fed into it – even random telephone numbers; that explained why the global warming and cooling of the last millennium magically disappeared in Mann’s “temperature reconstruction.”

The Climategate emails revealed another deliberate “trick” that Mann used to generate a late twentieth-century temperature jump: he replaced tree ring data with thermometer measurements at the point in his timeline when the tree data no longer fit his climate disaster thesis.

Not surprisingly, he refused to share his data, computer codes and methodologies with skeptical scientists. Perhaps worse, Climategate emails indicate that Mann and others conspired to co-opt and corrupt the very scientific process that Carr asserts will ultimately condemn or vindicate them.

This behavior certainly gives Cuccinelli “probable cause” for launching an investigation. As the AG notes, “The same legal standards for fraud apply to the academic setting that apply elsewhere. The same rule of law, the same objective fact-finding process, will take place.” Some witch hunt.

There is simply no room in science, academia or public policy for manipulation, falsification or fraud. Academic freedom does not confer a right to engage in such practices, and both attorneys general and research institutions have a duty to root them out, especially in the case of climate change research.

Then there is Virginia’s suit for “declaratory and injunctive relief” from Obamacare. Cuccinelli’s office recently responded to the feds’ motion to quash the suit. Here is the AG’s statement:

Virginia has responded to the federal government’s attempt to dismiss the state’s lawsuit against the new federal health care law, Virginia Attorney General Ken Cuccinelli announced today.

In its motion to the court to dismiss Virginia’s lawsuit, the federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature, and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty. The government also made alternative arguments based upon its taxing power and the Necessary and Proper Clause.

“If the government prevails and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything. That would amount to the end of federalism and our more than 220 years of constitutional government,” the attorney general said.

Here is a brief summary of some of the arguments:

Federal government’s arguments to dismiss the case

Virginia’s response

Virginia is not injured by the federal health care law

Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution’s Supremacy Clause, Virginia’s sovereign interests have been injured.

Because the mandate doesn’t take effect until 2014, the case is not “ripe”

1) Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present

2) Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid. One of those decisions made the commonwealth forego more than $100 million in federal money.

Virginia’s suit is barred by the Anti-Injunction Act

The act does not apply to states under these circumstances, because Virginia’s action falls within an exception to the act that has been recognized by the Supreme Court

The government has the power under the Constitution’s Commerce Clause to mandate the purchase of individual health insurance

1) The federal government’s argument is contrary to the text of the Constitution

2) The federal government’s argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders

3) The federal government’s argument is contrary to the historical context of the nation’s founding. When Great Britain instituted a tax on tea, the colonists’ response was to boycott and to not buy tea. Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.

4) The federal government’s argument is contrary to the traditional uses of the Commerce Clause. The clause has always been used to regulate economic activity; never inactivity.

5) The federal government’s argument is contrary to the precedent of the U.S. Supreme Court. The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.

Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution’s Necessary and Proper Clause.

1) Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both “the letter and spirit” of the Constitution. Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.

2) In May, the Supreme Court decided Comstock.

The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.

Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government’s taxing authority.

1) The penalty for not buying insurance is not a tax. Congress called it a “penalty” and claimed authority to act only under the Commerce Clause. To argue otherwise now ignores what Congress actually did.

2) A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.

Finally, for today, there is Cuccinelli’s principled defense of the First Amendment in the case of Snyder v. Phelps. Here is the text of the press release that explains his refusal to join a case filed by the AGs of 48 other States:

Attorney General Ken Cuccinelli has decided not to join other states in an amicus brief on behalf of Albert Snyder in Snyder v. Phelps, which will soon be heard by the U.S. Supreme Court. Mr. Snyder is the father of Matthew Snyder, a soldier killed in Iraq whose funeral was picketed by Fred Phelps and his followers at the infamous Westboro Baptist Church.

Here is our statement, given by Brian Gottstein, director of communication:

The attorney general’s office deplores the absolutely vile and despicable acts of Fred Phelps and his followers. We also greatly sympathize with the Snyder family and all families who have experienced the hatefulness of these people. The attorney general has always been a strong supporter of the military, both in his words and in his work as a Senator. But the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.

This office has decided not to file a brief in Snyder v. Phelps, because the case could set a precedent that could severely curtail certain valid exercises of free speech. If protestors – whether political, civil rights, pro-life, or environmental – said something that offended the object of the protest to the point where that person felt damaged, the protestors could be sued. It then becomes a very subjective and difficult determination as to when the line is crossed from severely offensive speech to that which inflicts emotional distress. Several First Amendment scholars agree.

Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services. That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event.

We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals. We think our statute does.

So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views. In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general’s office stands ready to provide any assistance to local prosecutors to vindicate the law.

A politician who stands on principle instead of bowing to popular outrage. How refreshing. How unusual.

Cuccinelli for President? Sounds good to me, but if you follow the first link in this post you will learn that Cuccinelli’s views on many issues would cause Democrats to unleash a latter-day anti-Goldwater scare campaign. Given the present mood of the country, however, Ken Cuccinelli could be just the right man for the times.

Accountants of the Soul

In a post about two of the founders of modern “liberalism,” T.H. Green, and L.T. Hobhouse, I say

Green and Hobhouse . . . were accountants of the soul. Green’s apparent delicacy in warning of too much intervention [by the state] is overcome, in the end, by his recognition of the British state (embodied in Parliament) as the proper arbiter of human conduct. Hobhouse, more boldly, presumed that he and others of his ilk (but not those who disagree with him) could determine how much of one’s property arose from “social organisation,” how much of one’s property was “held for power,” and how to expand liberty by adopting different forms of coercion than those imposed by social norms.

Once again, we are met with (presumably) intelligent persons who believe that their intelligence enables them to peer into the souls of others, and to raise them up through the blunt instrument that is the state.

It is hard to distinguish the mindset of the “liberal” from that of the “libertarian” paternalist, who does not cavil at the prospect of using the power of the state to “nudge” lesser mortals toward “choices” that he deems in their best interest. “Liberals” and “libertarian” paternalists are alike in their abstract love of mankind and particular disdain for individuals.

Illegal Immigration: A Note to Libertarian Purists

Libertarian purists (e.g., Donald Boudreaux and Bryan Caplan) like to criticize the critics of illegal immigration. In the minds of libertarian purists, national borders are merely statist concoctions. It is anathema to them that the United States exists primarily for the purpose of protecting its citizens and their liberty rights. (Well, it did exist for that purpose originally and for a long time, and it still does to some extent.) Libertarian purists seem to believe that, somehow, defense would be unnecessary and rights would be enforced even if the United States did not exist as a coherent, delimited entity. Good luck with that!

In any event, libertarian purists like to criticize those critics of illegal immigration who claim that (1) the lure of welfare benefits draws illegal immigrants and (2) illegal immigrants add to the burden on tax-paying Americans. My research into those issues may be out of date, so I might decide to update my old findings (contrary to an earlier suggestion that I would drop the subject). For the time being, I am content to note the following:

1. California, with 12 percent of the nation’s population, has 32 percent of the nation’s welfare caseload.

2. California, as of January 2008, was home to 25 percent of the illegal immigrants in the United States.

More to come, perhaps.

The Land of Sunshine: A Parable

This parable is meant to be disrespectful of many things, not the least of them being our rulers and the rules they foist upon us in their disrespect for us and our liberty. It is not meant to be disrespectful of women or persons of color, except for those among them — and their political champions — who believe that past wrongs justify the multiplication of wrongs into the future.

Once upon at time — not so long ago or far away — there was a land ruled by a wise, young king. Well, he was thought wise because he orated in the unctuous, condescending tones, and he was younger than most of the kings who had preceded him. Let’s just call him “the man.”

Now, the man was known for his unbounded compassion. He would do anything for his subjects, as long as it wasn’t at his own expense or the expense of his large, raucous council of advisers. (More about them, anon.) His preferred method of paying for his acts of beneficence was to pretend that they cost nothing — a ruse that he was able to sustain by taking money from his subjects and promising to repay the debt to their descendants. (This scheme had worked well for the man’s predecessors, and so he adopted it as his own — with a vengeance.)

The man’s pseudo-compassionate heart was troubled by the inequality he found in the land. It was upsetting to him was that not all of his subjects were equal in all respects. Some of the man’s subjects were more capable than others, and therefore had higher incomes than others. Although the man was not troubled about the high incomes of lawyers, movie stars, and basketball players, he nevertheless proposed the imposition of higher taxes on high-income persons, just to get even with them.

Other of the man’s subjects were women who could not do everything that men could do, which the man deemed unfair. Although he did not bemoan the fact that men were inferior to women in many respects, he nevertheless proposed forcing employers to hire women for jobs that men could do better.

And there were those of the man’s subjects who went about with pale, sickly white skin, whereas others sported glowing, healthy-looking shades of gold. And so the man proposed to his council of advisers that all pale persons should be made darker (and thus healthier) by allowing them to spend more time in the sun, and by giving them regular doses of a rare, expensive, and effective elixir.

The council of advisers debated the man’s proposals for months on end. The council had no problem with penalizing capable persons and males, for such practices had been accepted for decades, in the name of equality. Nor did the council object to the practice of sending pale persons to work in the sun, as long as it resulted in more indoor work for the golden ones.

The council’s main objection had to do with the elixir, and whether more of it could be produced so that its new consumers could enjoy it without depriving others of its health-giving powers. In the end, the council agreed with the man that it was more important to create the impression of equality than to worry about such trivial matters as the supply of a health-giving elixir. “Trust us, it will all work out,” were the reassuring words of the council’s leaders.

And thus it came to pass that this not-so-distant land was blessed with less freedom, declining prosperity, ill-bred children, more illness, and equality — but one out of five isn’t bad for government work. The only disappointment came when the pale persons acquired red necks instead of turning golden brown.

A Roundup of Crime Posts

A misguided social engineer at work: Mark Kleiman, guest-blogging at The Volokh Conspiracy last year (posts are in reverse chronological order).

Now, for some antitodes.

A breath of fresh air from Bryan Caplan, on the subject of addiction-as-disease as an excuse for anti-social and criminal behavior.

A look at crime and race in New York City, from City Journal.

A series of posts (in reverse chronological order) by Lester Jackson, writing at TCS Daily about the death penalty.

My own contributions:

Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Abortion and Crime
Saving the Innocent?
Saving the Innocent?: Part II
More on Abortion and Crime
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained
Abortion and Crime (from a different angle than the earlier post of the same name)

The Shape of Things to Come

Given the “State of the Union: 2010,” you may wonder how much worse things can get in this land of the once-free. Here are some very real possibilities:

More curbs on freedom of speech, in the name of “protecting” certain groups (e.g., homosexuals, immigrants, Muslims) and “preserving public order” (i.e., protecting government and government officials from criticism).

A complete government takeover of medical services (a U.S. National Heath Service), with no provision for opting-out to private care.

Environmentalism and warmism rampant, with draconian restrictions on everything from where we live, the design of our housing, and the range of products and services we are allowed to buy.

A stagnant economy — crushed by the weight of entitlement programs, environmentalism, warmism, and income equalization — affords a lower quality of life (on a par with the U.S. of the 1950s), and is unable to support a robust defense against foreign enemies.

Further reductions in quality of life, brought about by economic isolation, arising partly out of protectionism, partly out of voluntary withdrawal from overseas interests (in the name of self-sufficiency), and partly out of our unwillingness and inability to defend our overseas interests in the face of superior Chinese and Russian forces.

The erosion of traditional morality — aided by governmental endorsement of moral relativism — leading to the increasing brutalization of the citizenry and an eventual police-state response.

I could expand the list, but it is already depressing enough.

If you cannot participate in the efforts of the Tea Party movement, the American Conservative Union, and the Club for Growth to roll back the forces of oppression in this land, support those organizations with your dollars. Every little bit helps.

The State of the Union: 2010

We are in a state of statism.

Statism, as I have said,

boils down to one thing: the use of government’s power to direct resources and people toward outcomes dictated by government. . . .

The particular set of outcomes toward which government should strive depends on the statist who happens to be expounding his views. But all of them are essentially alike in their desire to control the destiny of others. . . .

“Hard” statists thrive on the idea of a powerful state; control is their religion, pure and simple. “Soft” statists [sometimes] profess offense at the size, scope, and cost of government, but will go on to say “government should do such-and-such,” where “such-and such” usually consists of:

government grants of particular positive rights, either to the statist, to an entity or group to which he is beholden, or to a group with which he sympathizes

government interventions in business and personal affairs, in the belief that government can do certain things better than private actors, or simply should do many things other than — and sometimes in lieu of — dispensing justice and defending the nation.

Hard statists simply reject liberty. Soft statists reject it in fact even as they claim to embrace it in principle. Together, hard and soft statists have harnessed themselves and the liberty-loving minority to the yoke of the state. It is by this tyranny of the majority that America has descended into Europeanism, from which there can be no escape unless the liberty-loving minority begins actively to resist it — as did a similar minority in 1775.

If you are a “fish in water,” and cannot see the extent to which America is in thrall to statism — nationally, regionally, and locally — consider these examples of the ways in which statism grips us:

1. Compulsory public education has been used by statists to inculcate statism. Higher education — especially the so-called liberal arts — is dominated by the products of statist inculcation.

2. “Free enterprise” and freedom of personal action are barely more free than they were under Hitler or Mussolini. If you doubt that, consider the hundreds of thousands of pages comprised in the U.S. Code, its implementing regulations, and the statutes, codes, and ordinances of States and municipalities.

3. “Private property” has gone by the wayside, in company with “free enterprise,” thanks to the same enactments. If you doubt that, think about compulsory unionism, smoking bans, the continuing misuse of eminent domain, and various restrictions on the sale and use of personal and business property.

4. Productive Americans, on the whole, pay about half of their income to their governments, for the purpose of supporting the counterproductive activities of those governments and their clients. Some of those productive Americans endorse and support this confiscatory regime because (a) they don’t understand its costs and consequences; (b) it makes them feel good; and (c) they subscribe to the Nirvana fallacy, in which an all-good, all-knowing government can (somehow) do the “right” things and do them “right.” The persistence of the Nirvana fallacy owes much to compulsory public education (point 1).

5. Our prosperity, such as it is, waxes and wanes with the whims of the Federal Reserve, which has the power to inflate, to feed bubbles, to cause depressions, and to fund government’s profligate spending (where taxation is insufficient or politically unpopular).

6. Incentives to work and save — to be self-reliant, in other words — have been diminished by the establishment of welfare “rights,” Social Security, Medicare, and Medicaid. To this list has been added the expansion of Medicare-Medicaid known as Obamacare.

7. Affirmative action, equal lending opportunity, equal housing opportunity, and other “preference” schemes penalize the more-capable at the expense of the less-capable. In a single stroke, such schemes enable advancement based on personal characteristics instead of merit, while destroying freedom of association and freedom of contract.

8. Various legislative, executive, and judicial acts have led to a kind of perverted legality that requires prisoners to be released when prisons become “overcrowded”; allows unborn and partially born human beings to be killed on a whim; stifles the free expression of political views for which the Founders fought and suffered; and treats foreign enemies as mere criminals with the same jurisprudential rights as the American citizens whose lives and property they would destroy.

There is much more, but that is all I can bear to acknowledge in a single post.

Is it any wonder that the Tea Party movement enjoys strong support, that Barack Obama (our statist-in-chief) merits strong disapproval, or that we must resort to civil disobedience if we are to enjoy a smattering of liberty?

Have a nice day!

How to Respond to the Census-Taker

UPDATED BELOW (05/09/10, 05/13/10, 03/31/11)

The census-taker has been to my door. He left a “notice of visit,” which includes a request to call him to arrange a time for my “census interview . . . it generally takes about 10 minutes.” His phone number isn’t in my local calling area, so a call to arrange an unconstitutional “interview” will cost me money. That’s adding injury to insult.

I won’t call him, of course, so he’ll drop by again. If he happens to catch me at home, I will be tempted to give him my 10-minute lecture about the unconstitutionality of the census, as it is conducted these days. The lecture addresses each of the 10 questions on this year’s census form, and the justifications for the various questions. Here’s the lecture:

The Constitution authorizes the census for the purpose of apportioning membership in the House of Representatives among the States. And it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration.” It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made.

Of the ten questions asked on this year’s census form, only question 1 is relevant to the constitutional purpose of determining the number of persons living in each State. The other nine questions are irrelevant, not to mention intrusive. If the right to privacy includes the right to kill an unborn or partially born human being (see Roe v. Wade, et seq.), surely it includes the right to refuse to answer unconstitutionally intrusive questions posed by the government.

I am therefore honoring the Constitution by answering question 1, and only question 1, which asks for the number or residents at my address on April 1, 2010.

The Census 2010 website offers reasons for asking questions 2 through 10. Here are my views about those questions:

2. This question – about persons not included in the answer to question 1 — does not apply to me. In any event, there would be no need for question 2 if question 1 were posed correctly.

3. Now you want to know about the ownership of my house. Why? Because the question has been asked since 1890 and the information is “an indicator of the nation’s economy” and “the data are . . . used to administer housing programs and to inform planning decisions.” As I will point out several times, the longevity of a question does not make it a legitimate one. Moreover, (1) the question has nothing to do with the constitutional purpose of the census; (2) decennial home-ownership data is practically meaningless, except possibly as an excuse for the government to underwrite risky mortgages and trigger yet another financial meltdown; and (3) there is no constitutional basis for the federal government’s involvement in housing programs. (Regarding this and several subsequent questions, I refer you to the Constitution, with which you may be unfamiliar. You should take special note of the powers of Congress, which are enumerated in Article I, Section 8.)

4. You want my phone number so that you can contact me if some of the information I provide is “incomplete or missing.” Well, you don’t need my phone number because I’ve answered question 1, which is the only information required for the constitutional purpose of the census.

5. Now you’re asking for names. One ostensible reason for the question is to help the respondent remember the number of members of a large household. But that’s just an excuse for unconstitutional prying, given that the instructions for question 1 could suggest that the respondent for a large household could work from a (private) list of names when answering the question. The other ostensible reason is “if additional information about an individual must be obtained to complete the census form.” The problem, of course, is that an enumeration for the purpose of allocating seats in the U.S. House of Representatives doesn’t require information about individuals; it simply requires a count of them.

6. The census has been asking about gender since 1790. So what? The federal programs and laws cited as justification for the question are as unconstitutional as the question. And since when is it the job of the federal government to collect data for “sociologists, economists, and other researchers”?

7. You’ve asked for age and date of birth since 1800. Again, a big “so what?” – does my age affect how many of me there are? And, again, you refer to federal programs for which the data are required; all of them – including Social Security and Medicare — are most assuredly unconstitutional.

8. Am I Hispanic, Latino, or of Spanish origin? More unconstitutional stuff, mainly designed to enable (or force) various governments to discriminate for certain racial/ethnic groups.

9. My race? Yeah, it’s been a question since 1790, but that was when a slave counted for 3/5 of a white person. The question has been irrelevant since the ratification of the Thirteenth Amendment in 1865. Regarding the various programs and laws cited as justification, see my comments about question 8.

10. Do I sometimes live or stay somewhere else? Well, you wouldn’t have to ask if you framed question 1 more precisely. In any event, what does the question have to do with the enumeration of the number of persons at my residence on a certain date?

I would, of course, assure the census-taker that he’s a good fellow, toward whom I harbor no ill will. And I would explain to him that I’m just sharing with him the views that I will impart in writing to the head of the Census Bureau and various members of Congress. I will wish him well, and express my hope that he is able to find a good job at the end of his stint as a census-taker. But I will answer only question 1.

UPDATE (05/09/10 @ 3:59 p.m.)

Well, the census-taker dropped by while my wife was working outside, so she handed him off to me. I spared him the 10-minute lecture and gave him the bottom line: the answer to question 1. I told him that I’d send the Census Bureau an explanation of my refusal to answer the rest of the questions. End of discussion. What will happen next? Stay tuned.

UPDATE (05/13/10@ 10:08 a.m.)

Do not — I repeat, do not — respond to the census-taker in this manner:

Williamson County [Texas] sheriff’s officials have charged an attorney with aggravated assault with a deadly weapon, saying she fired five shots when a U.S. Census Bureau worker visited her home Saturday [May 8, 2010], court records show.

Carolyn M. Barnes, 53, could face up to 20 years if convicted of the second-degree felony. She was being held in the Williamson County Jail on Wednesday afternoon with bail set at $50,000 .

Williamson County sheriff’s office Sgt. John Foster said the census employee, Kathleen Gittel, went to Barnes’ home on Indian Trail, just north of Leander, about 5:40 p.m. to collect information.

After Gittel identified herself as a census worker, Foster said, Barnes came outside with a handgun and told Gittel to get off the property.

Gittel “was apparently not getting off of her property fast enough, and Ms. Barnes decided to shoot five rounds in her direction,” Foster said. He said Gittel was not injured.

. . . fortunately.

The census-taker is just doing a job for money. He or she probably has no views about the constitutionality of the census, as it is conducted, and is not responsible for the questions on the census form. It is wrong and counter-productive to loose your wrath on the census-taker.

As for Congress, the president (and his minions), and the courts, express yourself in votes, words, nonviolent deeds, and contributions to the defenders of liberty (the Tea Party movement, the American Conservative Union, and the Club for Growth).And do it while you can.

UPDATE (03/31/11 @ 11:00 a.m.)

So far, so good. It has been 12 months since I refused to submit the questionnaire for Census 2010, and almost 11 months since I refused the 10-minute interview. Not a peep from the Census Bureau or a federal marshal.

Not All Sheep

In “A Nation of Sheep,” I expressed my disappointment that the mail participation rate for Census 2010 is the same as it was for Census 2000. But not all residents of all States were equally compliant. The following table sorts the States by the changes in their participation rates between 2000 and 2010:

Change in Mail Participation Rate, by State (percentage)
	State	Census 2000	Census 2010	Change
	Wyoming	72	68	-4
	Colorado	73	70	-3
	Montana	70	67	-3
	Nebraska	79	76	-3
	North Dakota	76	73	-3
	Oklahoma	69	66	-3
	South Dakota	78	75	-3
	Alaska	64	62	-2
	California	73	71	-2
	New Mexico	65	63	-2
	South Carolina	65	63	-2
	West Virginia	66	64	-2
	Arizona	68	67	-1
	Arkansas	68	67	-1
	Connecticut	75	74	-1
	Idaho	75	74	-1
	Iowa	79	78	-1
	Louisiana	65	64	-1
	Massachusetts	74	73	-1
	Missouri	74	73	-1
	New Hampshire	71	70	-1
	New Jersey	73	72	-1
	Ohio	77	76	-1
	Wisconsin	82	81	-1
	Kansas	75	75	0
	Maryland	74	74	0
	Michigan	77	77	0
	Mississippi	67	67	0
	Nevada	69	69	0
	Oregon	74	74	0
	Pennsylvania	76	76	0
	Delaware	68	69	1
	Georgia	69	70	1
	Maine	65	66	1
	New York	66	67	1
	Rhode Island	70	71	1
	Texas	68	69	1
	Hawaii	64	66	2
	Illinois	73	75	2
	Indiana	76	78	2
	Minnesota	78	80	2
	Utah	72	74	2
	Vermont	65	67	2
	Washington	72	74	2
	Florida	69	72	3
	Virginia	73	76	3
	Alabama	66	70	4
	Kentucky	70	75	5
	Tennessee	69	74	5
	North Carolina	66	74	8

Source: Census.gov download.

I have highlighted the States in which participation rates changed significantly (i.e., by more than one standard deviation from the mean). Kudos to the residents of Wyoming, Colorado, Montana, Nebraska, North Dakota, Oklahoma, and South Dakota. Honorable mention to the residents of the next seventeen States with negative numbers: Alaska through Wisconsin. Scorn for the lamb-like residents of the thirteen States from Delaware through Washington. And a hearty b-a-a-a to the sheep-like denizens of Florida, Virginia, Alabama, Kentucky, Tennessee, and North Carolina.

Blasts from the Past

I have republished much of the pre-blog (“home page”) version of my old blog, Liberty Corner, in 29 posts at The Original Liberty Corner. (There’s a link to TOLC in the right sidebar, for permanent access.) Some of the material at TOLC is dated; most of it remains current; some of it is prescient.

The preceding post, “First Principles,” is based on one of my early contributions to the pre-blog version of Liberty Corner. From time to time, I will update other material and re-post it at this blog.

Restoring the Constitutional Contract

Introduction

Contracts come in many forms and serve many purposes. They may be as informal and ephemeral as the understanding between barber and customer that the barber will cut the customer’s hair and the customer will pay the barber a certain amount of money for the haircut. They may be as solemn and hopefully eternal as marriage vows.

In the public realm there is no more solemn contract than the Constitution of the United States. But the great national crises of the Twentieth Century–especially the Depression and World War II–fostered the habit of giving illegitimate power (and money) to the federal government. Thus the constitutional contract and the pillars of the Constitution–the States and citizens–have been undermined

The immense, illegitimate power that has accrued to the federal government cannot be found in the Constitution. It arises from the cumulative effect of generations of laws, regulations, and court rulings–each ostensibly well-meant by its perpetrators

The habit of recourse to the federal government has become a destructive cycle of dependency. Elected representatives and unelected elites have vested unwarranted power in the federal government to deal with problems “we” face–problems the federal government cannot, for the most part, begin to solve and which it demonstrably fails to solve many more times than not. The conditioned response to failure has been to cede more power (and money) to the federal government in the false hope that the next increment will get the job done.

There has been much bold talk in recent times about making the federal government smaller and devolving federal power to the States. The bottom line is that the executive branch still regulates beyond its constitutional license, Congress still passes laws that give unwarranted power to the federal government, and federal spending still consumes about the same fraction of economic output that it did two decades ago.

To break out of this cycle of addiction, we must restore the constitutional contract and thus free the States and citizens–especially citizens–to realize their economic, social, and spiritual potential.

The Contract, Its Reach, and Its Principles

The Constitution is a contract between the States. In it, the States cede certain powers to a government of the united States, created by the States on behalf of the States and their citizens. Thus, for example, in Section 10 of Article I, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress–creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Preamble lists the States’ reasons for entering into the constitutional contract, which are “…to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” These are ends desired, not outcomes promised.

To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.

The Framers knew what we are now only re-learning: A government is a power-hungry beast–even a representative government. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them.

Thus the limited scope of the constitutional contract provides for:

primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the federal government. The federal government is not, and was not intended to be, a national government that supersedes the States.)

collective obligations of the States, as the united States, and individual obligations of the States to each other

structure of the federal government–the three branches, elections and appointments to their offices, and basic legislative procedures

powers of the three branches

division of powers between the States and federal government

rights and privileges of citizens

process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

The Constitution and constitutional laws are the supreme law of the land, within the clearly delimited scope of the Constitution.

The federal government has no powers other than those provided by the Constitution.

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The Limits of Federal Power

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution

…expressly confines this supremacy to laws made pursuant to the Constitution…[Federalist number 33].

Thus the authority of the federal government–the government formed by the united States–enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.

Moreover, the “checks and balances” in the Constitution limit the federal government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role–as head of the executive branch–the President of the United States must, with specified exceptions, sign acts of Congress before they become law, and may veto acts of Congress–which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The Constitution itself defines the sphere of authority of the federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X; to repeat:

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The Rise of Unconstitutional Laws and Regulations

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Most such laws and regulations seem to rest on these foundations:

the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.

the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.

the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8].” The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.

the “equal protection” clause of Amendment XIV: “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

Restorative Remedy

The constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

It is clear that the contract has been breached. Only by restoring it and reversing generations of federal encroachment on the rights and powers of the States and people can we “secure the Blessings of Liberty to ourselves and our posterity.”

The Constitution itself contains the restorative remedy:

[O]n the application of the legislatures of two thirds of the several States, [Congress] shall call a convention for proposing amendments, which …shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by the conventions in three fourths thereof…

Congress has in hand the requisite number of applications for a constitutional convention but has resisted calling one. If pressed, the leaders of Congress would invoke the spectre of the rabble rescinding the Bill of Rights. But what the professional politicians in Congress (and their allies in the executive branch and community of special-interest groups) must truly fear is the reassertion by the citizens and States of their constitutional rights and powers.

Here is a place to begin: “A New, New Constitution.”

The Tortured Constitution

The “rule of law” is a joke when the President make laws by Executive Order, when Congress tries to outdo the President by making laws that are not within its power to make, and when the Supreme Court turns a blind eye to both forms of lawlessness.

Government today: a small minority of the populace which presumes to tell the vast majority how to live.

The Constitution’s promise of a federal government with limited powers has been broken by extra-constitutional means. Congress and the President have asserted powers not granted by the Constitution; the courts have changed the meaning of the Constitution instead of applying its intended meaning.

Legislation: the usually misguided effort to deal with uncertainty by dictating to nature and human nature.

Most government programs are founded on two illusions: first, that the voluntary transactions of individuals and businesses often yield “bad results”; second, that the government can reverse those “bad results” without also undoing all the “good results” that seem to go unnoticed by the proponents of government action.

It is a short — very short — step from “hate crimes” to “thought crimes.”

Laws against such instruments of abuse as alcohol, cigarettes, drugs, and guns arise from legislative pandering to moral zealots, closet dictators, and those who are frightened easily by media hype. Such laws undermine respect for the law by penalizing the vast majority for the anti-social acts of small minorities. The only laws we should have to rely on for our self-protection are those that hold each and every one of us — young or old, sane or insane, non-white or white, female or male, heterosexual or homosexual — individually responsible for the consequences of our actions. Acceptance of individual responsibility cannot be imposed by the law; it must be learned within the family circle.

The government that was formed to protect citizens from the tyranny of arbitrary power has become the embodiment of arbitrary power.

Old saying: Those who can, do; those who can’t, teach. New saying: Those who “can’t do” make laws so those who “can do” have to work harder to make less money.

Twentieth Century American statism — the concentration of vast power in the hands of the federal government in the name of “good” — is authoritarianism in a Santa Claus suit.

Combating Constitutional Cancer

Rhetoric about an end to “big government” is clearly just that, rhetoric. The federal government remains able and more than willing to intrude into the business of the States and the lives of the people. Because of the cancerous growth of big government, whatever liberty and prosperity we enjoy is a pale shadow of the ideals and promises of the Declaration of Independence and Constitution.

Some of the cancer can be excised simply by repealing two Twentieth-Century amendments to the Constitution. Anything approaching a cure will require delicate surgery to the text of the Constitution, to preserve its spirit while making its meaning clearer and thus more difficult to abrogate in future generations.

Promises Blighted

James Madison and Alexander Hamilton — who with John Jay propounded the new Constitution in The Federalist Papers — would be chagrined by the present state of federalism:

“It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities, ” wrote Hamilton in Number 17. He wrote not idly, for he said again in Number 31 that “there is greater probability of encroachments by the members upon the federal head than by the federal head upon the members.”

Madison took up the refrain in Number 45:

The State governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predeliction and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

He continued in Number 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

And he concluded Number 46 by saying that

the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States as they are indispensably necessary to accomplish the purposes of the Union….

The ironies are great, and bitter.

And so it is that the authors of the Declaration of Independence, if they were writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list could rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

Two Causes and a Partial Cure

Although it flared sporadically in the Nineteenth Century, the cancer of federal statism spread virulently in the Twentieth Century, feeding on misplaced faith in the federal government and distorted readings of the Constitution. (See Restoring the Constitutional Contract for a detailed analysis.) The cancer spread all the more rapidly because Amendments XVI and XVII — both ratified in 1913 — destroyed two vital constitutional anti-bodies.

Amendment XVI enabled the federal government to tax incomes, that is, to feed directly on the nation’s life-blood. Per-capita federal receipts, in dollars of constant purchasing power, grew about 1.5 times between the abolition of the Civil War income tax and the ratification of Amendment XVI. Since the ratification of Amendment XVI, per-capita, constant-dollar federal receipts have grown more than 200 times. The absolute power to tax is absolutely addictive.

Amendment XVII eliminated an important check on federal power by requiring the direct election of Senators instead of their appointment by State legislatures. Before Amendment XVII, Senators were more tightly bound to the interests of their respective States and thus more likely to resist encroachments on the States’ constitutional prerogatives. And because Senators were further removed than Representatives from the passions of the day, they were better able to resist legislative fads and follies.

Clearly, the passions of the day were too much even for the Senators who collaborated in the passage of Amendments XVI and XVII. (A lesson here is that the Constitution should be amended to make it more difficult to amend.)

In any event, the prescription for Amendments XVI and XVII is simple: Excise them from the constitutional body by repealing them.

Radical Surgery Required

But we mustn’t stop there, for the constitutional body is riddled with a more virulent cancer, namely, the blatantly unconstitutional and extra-constitutional aggrandizement of federal power that has persisted for generations. This insidious malignancy has taken root and spread in spite of the language of the Constitution and the intentions of the Framers, and with the complicity of Congress and the courts. (Again, see Restoring the Constitutional Contract for a detailed analysis of the Framers’ intentions and the bases of federal aggrandizement.)

The cure — if there is a cure — will require radical surgery: revising the Constitution to preserve its spirit while sharpening its meaning and making it more difficult to abrogate. A Restored Constitutional Contract offers such a revision. Article V of the Constitution tells us how to proceed:

The Congress,…on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which,…shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress….

The way would be tortuous and treacherous, but so was the the way to the Constitution that we have nearly lost to federal aggrandizement. Let us begin before it is too late.

Crime and Punishment

Crime, like charity, begins at home, and home is therefore the first line of defense against crime.

A second line of defense is necessary and — in these times — essential to the general welfare. That line of defense is justice, administered by the community through the state.

The linch-pin of justice is punishment by law. The operative word is “punishment” — not “correction” or rehabilitation.” Crime is not deterred or prevented by the promise of rehabilitation. (Who commits a crime in the hope or fear of being rehabilitated?)

What if deterrence does not always work, as those who are opposed to capital punishment like to point out? For sociopaths and psychopaths who are undeterred by the concept of punishment, the answer is punishment of a kind that will ensure that they can no longer do harm to others: life in prison or death at the hands of the state.

There are those who equate death at the hands of the state with murder. This is nonsense and sentimental clap-trap on a par with counseling unilateral disarmament or pacifism in the face of an invading horde. By such reasoning, we would not have (finally) risen to the task of removing Herr Hitler from the scene. How many sob-sisters (of whatever gender) would wish that we had stayed on the sidelines while Hitler applied the “final solution”?

Justice — when served — serves civilization and social solidarity. First, of course, it deters and prevents wrong-doing. Second, it meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

Law and Society

The Social Contract

Laws tend to reflect social standards of civility, that is, the tenets of acceptable behavior or ethics, if you prefer. Social standards of civility foster the general welfare of a society by creating a “social contract” or understanding among its members that encourages constructive behavior and discourages destructive behavior.

The essence of the social contract is captured in the admonition to “do unto others as you would have them do unto you” (the Golden Rule) and its corollary to “mind your own business.”

Erosion of the Social Contract

Laws that violate the social contract breed contempt for the rule of law, and thus undermine social cohesion, in three ways. First, such laws are often flouted or not enforced consistently (e.g., Prohibition and euthanasia). Second, when such laws are enforced rigidly (e.g., affirmative action) the result is heightened tension between those who stand to gain from their enforcement and those who stand to lose from it. And, third, such laws conflict with and undermine the moral force of accepted social standards.

The written Constitution embodies the social contract. It does not, for example, favor a particular race, gender, or economic class. Rather, it gives individuals enough room in which to pursue their own aims without trampling on the hopes of others.

In spite of the written Constitution, we have come to live under governments — federal and State — that do unto us what we would not do unto others and which mind our business for us. The price of such paternalism is paid not only in high taxes and intrusive regulations but also in the loss of social cohesion and civility. Laws made in Washington and the State capitals through the collusion of special interests undermine the Golden Rule, breed contempt for the rule of law, contempt for lawmakers, and contempt for the special interests they favor. Contempt spills over into incivility and, from there, into unlawfulness.

The Consequences

Is it not mere coincidence that life in this century has become less civil and more dangerous as “activist” governments have sundered the social fabric. We have gone from double-entendres on radio to explicit sex on TV; from dirty election campaigns to perpetual political rancor; from the law as a last resort in disputes to the law as the first resort; from welfare as a disgraceful state to the welfare state; from fifteen minutes of sanitized news to twenty-four hours of salacious speculation; from lyrics you could sing to noise that hurts your ears; from suits, ties, and polished oxfords to tank-tops, shorts, and no shoes at all; from Sunday dinners after church to lost Mondays after drug- and booze-filled weekends; from juvenile delinquency to “routine” rape and murder by juveniles….

And, oh yes, how are racial relations today compared with what they were, say, fifty years ago?

Is There No Balm in the Law?

There are some who believe that government can impose civility, or that it should do so in some circumstances, without heed for the social cost. Well, if government could impose civility, the Civil War and the Civil War amendments would have done the job. As Mr. Lincoln might have said, you can impose civility on some of the people, some of the time, but you can’t impose civility on all of the people all of the time.

Isn’t involuntary civility (e.g., affirmative action) better than voluntary barbarity? The question overlooks the proper role of law, which is not to impose a certain type of civility (e.g., “equality” of the races) but to deter and, if necessary, to punish specific acts of wrongdoing (e.g., murder). The question also overlooks the corrosive effects of coercive laws on the social order.

But isn’t it wrong and uncivil, for example, to refuse a person “a place at the inn” because of his or her color? Answer: It is no more wrong than the refusal to grant a person a place at the inn because he or she is “improperly” attired. The government that may dictate the color of the inn-keeper’s guests and employees is a government that may force the inn-keeper to admit the unkempt and unshod. Discrimination solely on the basis of race is, and was, uncivil and shameful, but the inn is the inn-keeper’s, not society’s and certainly not the government’s.

It is right and civil for the law to say that one person may not kill another person with impunity. Period. Any reference to the color of the victim is gratuitous. Murder is murder. Why should the punishment for murder be tied to the characteristics of the victim? Is it somehow less of a crime to murder a white male than, say, a black female? If it is a capital offense, in some States, to kill a police officer, why is it not a capital offense to kill an “ordinary” citizen?

Re-declaring Independence

When the law was based on social standards of civility, we understood it and respected it. Turning the law on its head by attempting to dictate social standards has had the doubly destructive effect of corrupting our standards and eroding our respect for the law.

This diagnosis points to the remedy, which many have already adopted: a re-declaration of independence. Instead of violently overthrowing the existing order, there is a growing tendency to opt out of it by become less dependent on those institutions that have been corrupted by government. Thus we see more home schooling and private schools in lieu of public schools, just as we see more law-abiding citizens flock to enclaves where they find security and traditional values: rural communities where crime remains relatively rare, “magnet” communities that attract persons who share certain religious or social views, and gated communities with their own security forces.

Government tries to thwart such efforts because they are a threat to its legitimacy and, more importantly, to its ability to collect taxes. Without tax revenues, government cannot support its bloated bureaucracies and the welfare-state junkies (of all economic classes) who cling to it because they have nothing else in which to believe.

The official argument against re-declarations of independence is that they undermine society. The truth is that government has undermined society by undoing the terms of the social contract. Declarations of re-independence are our best hope for restoring the social contract and rebuilding society.

Let us take heart from the closing words of Lincoln’s first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The Constitution and the Role of the Federal Government

The Constitution’s Purpose Perverted

The Constitution of the United States of America is a contract in which the States establish a federal government with clearly delineated powers, for specified purposes: “…to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” These are desired ends, not promised outcomes.

In the constitutional contract, the States cede certain of their own powers and grant limited powers to the federal government. In Section 10 of Article I, for example, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress — creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Constitution, in turn, authorizes the federal government to enact, execute, and adjudicate laws within a limited sphere of authority. The Constitution not only limits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.

The federal government is the creature of the States, not their master. And the creature, like Frankenstein’s monster, has taken on a destructive life of its own.

Beginning at the Beginning: the Terms of the Constitutional Contract

The limited scope of the constitutional contract provides for:

primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the federal government. The federal government is not, and was not intended to be, a national government that supersedes the States.)

collective obligations of the States, as the united States, and individual obligations of the States to each other

structure of the federal government–the three branches, elections and appointments to their offices, and basic legislative procedures

powers of the three branches

division of powers between the States and federal government

rights and privileges of citizens

process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

The Constitution and constitutional laws are the supreme law of the land, within the clearly limited scope of the Constitution.

The federal government has no powers other than those provided by the Constitution.

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

In sum, the constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

Federal Aggrandizement and Its Consequences

But the great national crises of the Twentieth Century — especially the Depression and World War II — fostered the habit of giving illegitimate power (and money) to the federal government. Thus the constitutional contract and the pillars of the Constitution — the States and citizens — have been undermined.

The habit of recourse to the federal government has become a destructive cycle of dependency. Elected representatives and unelected elites have vested unwarranted power in the federal government to deal with problems “we” face — problems the federal government cannot, for the most part, begin to solve and which it demonstrably fails to solve many more times than not. The conditioned response to failure has been to cede more power (and money) to the federal government in the false hope that the next increment will get the job done.

The Unconstitutional Bases of Federal Aggrandizement

To break out of this cycle of addiction, we must restore the constitutional contract and thus free the States and citizens — especially citizens — to realize their economic, social, and spiritual potential.

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution

…expressly confines this supremacy to laws made pursuant to the Constitution…[Federalist number 33].

Thus the authority of the federal government — that creature of the States — enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.

Moreover, the “checks and balances” in the Constitution limit the federal government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role–as head of the executive branch–the President of the United States must, with specified exceptions, sign acts of Congress before they become law, and may veto acts of Congress–which may, in turn, override his vetoes. >From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Most such laws and regulations rest on these weak foundations:

the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.

the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.

the authority of Congress

[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8].

The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.

the “equal protection” clause of Amendment XIV:

…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.

Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

The Price of Federal Aggrandizement

It is fitting that today’s “liberals” — who invoke unreasoning fear of less government — are the intellectual descendants of Franklin Roosevelt, the architect and progenitor of policies that have eroded civility, stifled initiative, and bled the nation’s wealth. Yes, the federal government — as it has become — incubates incivility, suppresses individual initiative, and brings about more economic distress than it can ever hope to alleviate.

The incivility of racial tension, for example, has been heightened by the affirmative-action policies of the federal government, which favor classes of people because of their race and gender. It is right, and constitutional, for blacks to have the same access to the ballot box as whites. It is wrong, and unconstitutional, for blacks to be favored over whites because of their color.

The tax code that punishes initiative, to take a second example, rests on the presumption that a person who makes more money should pay not only more taxes than a person who makes less money, but pay disproportionately more taxes. Who is to say that Ms. X, who put herself through graduate school, deserves to pay a higher fraction of her income in taxes than Mr. Y, who chose to drop out of high school and pursue a career in the fast-food business?

Finally, the intervention of the federal government is responsible for exacerbating, if not causing, the great economic disasters of the Twentieth Century — including the Great Depression of the 1930s and the double-digit inflation of the late 1970s and early 1980s. The great bull market of 1974 to 1998 will come to an end — if it hasn’t already — regardless of (if not because of) the great god Greenspan. Expecting the federal government to contain and control fundamental economic forces is like expecting a surfer to tame a tsunami.

It becomes increasingly evident that the Framers knew what we have been re-learning in recent years: A government, even a representative government, is a power-hungry beast. More power in the hands of government means less power for individuals.

Restoring the True Constitution: The Only Thing We Have to Fear Is Fear Itself

The constitutional contract has been breached. Only by restoring it and reversing generations of federal encroachment on the rights and powers of the States and people can we “secure the Blessings of Liberty to ourselves and our posterity.”

The Constitution itself contains the restorative remedy:

[O]n the application of the legislatures of two thirds of the several States, [Congress] shall call a convention for proposing amendments, which …shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by the conventions in three fourths thereof…

Congress has in hand the requisite number of applications for a constitutional convention but has resisted calling one. If pressed, the leaders of Congress would invoke the specter of the rabble rescinding the Bill of Rights. But what the professional politicians in Congress (and their allies in the executive branch and community of special-interest groups) truly fear is the reassertion by the citizens and States of their constitutional rights and powers.

What would happen? Would “society” disintegrate and incivility reign? Would the rich get richer as the poor get poorer? Would we experience wild swings of prosperity and poverty? To ask these questions is to acquiesce in the “liberal” myth that it is government — in particular, the federal government as it has become — that stands between us and a state of incivility, that enables the skilled and determined to get ahead in our positive-sum economy (your gain is not my loss), and that stands between all of us and the specter of another Great Depression.

We are paying (and paying and paying) dearly for our pact with the devil — the promise of an eternal “free lunch” in exchange for control of our own lives and livelihoods. Do we have the collective guts to tear up the pact and reclaim our liberty? Or, as FDR said, will we be bound by “nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance”?

First Principles

The Constitution is for “we the people,” not “we the politicians” or “we the bureaucrats.”

A society is formed by the voluntary bonding of individuals into overlapping, ever-changing groups whose members strive to serve each others’ emotional and material needs. Government — regardless of its rhetoric — is an outside force that cannot possibly replicate societal bonding, or even foster it. At best, government can help preserve society — as it does when it deters aggression from abroad or administers justice. But in the main, government corrodes society by destroying bonds between individuals and dictating the terms of social and economic intercourse — as it does through countless laws, regulations, and programs, from Social Security to farm subsidies, from corporate welfare to the hapless “war” on drugs, from the minimum wage to affirmative action. On balance, the greatest threat to society is government itself.

The promises made in America’s Constitution are valid only within the United States, not across international borders. Even with the benefit of a common Constitution, we Americans find it harder every year to honor and respect each other’s lives, fortunes, and honor. Expecting other nations to behave as if they were bound by our Constitution is like trusting Hitler in the 1930s — an exercise in false hope and self-delusion.>Free speech is a right. A free pass based on gender, race, religion, or any other incidental characteristic is extortion.

Liberty is not anarchy, nor is it the government dictating how we may live our lives and pursue happiness.

Liberty: the right to make mistakes, to pay for them, and to profit by learning from them.

The best government is that which walks the fine line between the tyranny of anarchy and the tyranny of special interests.

The business of government is to protect the lawful pursuit and enjoyment of income and wealth, not to redistribute them.

Each citizen is a unique minority of one who should enjoy the same rights as all other minorities.

The most precious right these days is the right to be left alone.

Abortion and Crime

In several posts at my old blog, I examined the causes of crime and ways to combat it. Among other things, I debunked the proposition that more abortion means less crime. (See this post and follow the links therein.) Abortion, if it does anything, leads to more crime by women because it “frees” them from child-rearing:

Derived from Statistical Abstracts of the United States: Table HS-24. Federal and State Prisoners by Jurisdiction and Sex: 1925 to 2001; and Table 338. Prisoners Under Federal or State Jurisdiction by Sex.

It’s women’s lib at work!

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Introduction

The Contract, Its Reach, and Its Principles

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