A Congress of Unlimited Power?

Posted on November 11, 2020 by Loquitur Veritatem

Preamble

In the debates about the passage of the Patient Protection and Affordable Care Act (ACA), there were charges (and denials) that ACA would include “death panels”. In fact, a central feature of ACA was the now-defunct Independent Payment Advisory Board (IPAB), which was

to have the explicit task of achieving specified savings in Medicare without affecting coverage or quality….

Beginning in 2013, the Chief Actuary of the Centers for Medicare and Medicaid Services determined in particular years the projected per capita growth rate for Medicare for a multi-year period ending in the second year thereafter (the “implementation year”). If the projection exceeded a target growth rate, IPAB was to develop a proposal to reduce Medicare spending in the implementation year by a specified amount.

With regard to IPAB’s recommendations, the law said: “The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums … , increase Medicare beneficiary cost sharing (including deductibles, coinsurance, and co-payments), or otherwise restrict benefits or modify eligibility criteria.”

Defenders of ACA claimed that IPAB wasn’t a “death panel” (or an incipient one) because ACA specifically prohibited it from recommending the rationing of health care. But IPAB didn’t have to ration health care directly. All it had to do was “develop a proposal to reduce Medicare spending … by a specified amount”. Any such proposal, which would go into effect unless Congress overrode it, would have had the effect of forcing rationing of some kind, by some means (e.g., reducing or eliminating Medicare coverage for certain conditions, or reducing the compensation of providers who might treat certain conditions, thus discouraging them from treating those conditions in the first place).

It’s true that IPAB, or something like it, was (and still is) necessary in a government-run systems like Medicare and Medicaid, where the amount of money available to provide health care is limited by Congress. (In fact, some lefties openly admit it.) But that just moves the problem up a level. It means that Medicare and Medicaid, which are essentially mandatory for tens of millions of persons, constitute a system for rationing health care. (All misguided rhetoric to the contrary, free markets are not rationing mechanisms.)

But what if Medicare and Medicaid didn’t exist and many older Americans had to do without many of the health-care products and services that they enjoy because they couldn’t afford those products and services? The existence of Medicare and Medicaid, whatever their benefits, is tantamount to governmental rationing; that is, their existence forces the redistribution of income among citizens (beneficiaries of Medicare and Medicaid vs. those who subsidize it) and the reallocation of resources toward health care and away from other uses.

The bottom line: It’s true that ACA doesn’t mention death panels and prohibits rationing. But ACA in fact established a “death panel” (IPAB) and authorized (even more) rationing of health care than was already the case under Medicare and Medicaid, pre-ACA.

In sum, a thing can exist without being called by a particular name. Reverse discrimination, for example, exists because Affirmative Action and various “diversity” programs, as they are practiced, foster discrimination against straight, white males of European descent. But to say that Affirmative Action and “diversity” programs are discriminatory is verboten in left-speak.

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

The same principle — that a thing can exist without being called by a particular name — applies to the Constitution of the United States. An obvious case is found in the structure of the Constitution, which is characterized as a system of checks and balances. The term “check and balances” is found nowhere in the Constitution, but the Constitution does nevertheless provide checks on the power of the central government and balances between the powers of the central government’s branches and between the powers of the central government and State governments.

Likewise, the Constitution nowhere says that the powers of the central government are enumerated (and therefore limited). But they are, despite Richard Primus’s casuistry in “Herein of ‘Herein Granted’: Why Article I’s Vesting Clause Does Not Support the Doctrine of Enumerated Powers” (U of Michigan Public Law Research Paper No. 681, October 8, 2020).

What is the Vesting Clause? It is Section 1 of Article I, which says this:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Primus makes much of what he calls the lack of parallelism between that language and the its counterparts in Article II (which defines the executive branch) and Article III (which defines the judicial branch); viz.:

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Which, as I will show, is akin to making a mountain out of a molehill. To what end?

This: Primus’s attack on the Vesting Clause is really an attack on the doctrine of enumerated (and therefore limited) powers. As he says,

the idea that Article I’s Vesting Clause limits Congress to a set of textually enumerated powers was virtually unknown in the ratification debates of 1787-88. 18 It was also absent from the First Congress, and conspicuously so. The First Congress prominently featured conflict over the question of whether Congress was limited to powers specifically enumerated in the Constitution: think, for example, of the fight over chartering the Bank of the United States. The Representatives arguing for the enumerationist position in those debates had every incentive to point to the Vesting Clauses for support, if they thought the Vesting Clauses supported their view. None of them did, which suggests that none of them thought Article I’s Vesting Clause established the enumeration principle.

In all of the Federalist Papers, for example, thirty or so of which specifically addressed questions about the extent of congressional power, Publius invoked the Vesting Clause exactly zero times.

This is nothing but argumentative sleight of hand. The Vesting Clause may not have been invoked, but the Constitution was ratified on the clear understanding that the powers of the central government were limited because they were specifically enumerated (mainly in Section 8 of Article I). The proponents and opponents of specific legislation wouldn’t have argued about the broad language of the Vesting Clause. Rather, they would have argued about the specific inclusion or exclusion of the subject matter in text of the Constitution. The main repository of specific language is Section 1 of Article I.

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

Under the Articles of Confederation (Articles) that preceded the Constitution, the central government — such as it was — depended on the whims of member States to finance its operations. It therefore proved difficult to provide for such things as the defense of the United States, the conduct of foreign affairs on behalf of all of the States, and the free flow of trade among the States. Further, every State was equal to every other State — one State, one vote — which made it possible for regional coalitions and even individual States to wield disproportionate power. (Among the compromises that underlay the adoption and ratification of the Constitution was the creation of the Senate, which wields some amount of disproportionate power but not as completely as did the States of the confederation.)

The Constitution doesn’t specifically say that the powers of the central government are enumerated and limited, but they are, as a legacy of the Articles:

Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

(Aside: Whereas the Articles of Confederation refer specifically to a “perpetual Union” of the member States, the Constitution nowhere says or implies that the resulting union was meant to be perpetual.)

During the debates about the ratification of the Constitution, a great many speeches were given and great amounts of ink and paper were devoted to the issue of constraints on the central government. Alexander Hamilton, James Madison, and John Jay — leading advocates of ratification — issued their arguments in the series of essays that became known as The Federalist Papers. Among Madison’s contributions are Federalist Nos. 41, 42, 43, 44, and 45. Those five papers constitute a defense of the specific powers granted to the central government by the Constitution. Madison nowhere adverts to unmentioned, free-floating power because the Constitution doesn’t grant any such power to the central government.

As Madison puts it in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined [emphasis added]. Those which are to remain in the State governments are numerous and indefinite.

How Conservatives Should Think about the Constitution

Posted on January 30, 2020 by Loquitur Veritatem

It is has long been glaringly evident that a large and vocal fraction of U.S. citizens rejects the Constitution’s blueprint for liberty. That fraction — the anti-patriotic left — rejects almost everything about the Constitution, from its federal character to its promise to provide for the common defense to its guarantee of free exercise of religion.

The left’s attitude toward the Constitution shouldn’t be surprising, given that the left rejects the cultural context of the Constitution, and of the Declaration of Independence before it. That context is the Judeo-Christian tradition, generally, and the predominantly British roots of the signatories, in particular.

Candor compels me to admit that the high-flown language of the Declaration to the contrary notwithstanding, it was a p.r. piece, penned (in the main) by a slave-owner and subscribed to by various and sundry elites who (understandably) resented their treatment at the hands of a far-away sovereign and Parliament. The Constitution was meant, by the same elites, to keep the tenuous union from flying apart because of sectional differences (e.g., diverging trade policies and foreign connections), and to defend the union militarily without depending on the whims of the various State legislatures.

But in serving their interests, the Founders and Framers served the interests of most Americans — until the onset of America’s societal and cultural degeneration in the 1960s. It was then that political polarization began, and it has accelerated with the passage of time (despite the faux unity that followed 9/11).

Lamentable as it may be, the demise of the Constitution is just a symptom of the demise of America as something like a social and cultural entity. Conservatives must recognize this reality and act accordingly. Flogging a dead horse will not revive it. America as it was before the 1960s is dead and cannot be revived.

Conservatives must face the facts and learn from the left.

These are the facts (some of which are previewed above):

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

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

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

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

5. It is convenient to appeal to the Constitution in the cause of liberty — and I have often done just that — but this does not change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

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

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

8. The ultimate and truly legitimate form of rejection is civil disobedience — the refusal of individual persons, or voluntary groupings of them (e.g., family, church, club, and other institutions of civil society), to abide by positive law when it infringes on natural law and liberty.

States and municipalities governed by leftists are engaging in institutional civil disobedience (e.g., encouragement of illegal immigration, spiteful adoption of aggressive policies to combat “climate change” and to circumvent the Second Amendment; an organized effort to undermine the Electoral College; a conspiracy by state actors, at the behest of Obama, to thwart the election of Trump and then to oust him from the presidency). There are also some conservative counterparts (e.g., Second Amendment “sanctuaries” and aggressive State efforts to undermine Roe v. Wade).

The lesson for conservatives is to do more of what the left is doing, and to do it aggressively. When the left regains control of the White House and Congress — as it will given the mindlessness of most American voters — conservatives must be prepared to resist the edicts emanating from Washington. The best way to prepare is to emulate and expand on the examples mentioned above. The best defense is a good offense: Dare Washington to deploy its weaponry in the service of slavery.

Slavish obedience to the edicts of the central government is neither required by the dead Constitution nor in keeping with conservative principles. Those principles put traditional morality and voluntarily evolved norms above the paper promises of the Constitution. In fact, those promises are valid only insofar as they foster the survival of traditional morality and voluntarily evolved norms.

Related page and posts:

Constitution: Myths and Realities

The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Substantive Due Process and the Limits of Privacy
The Southern Secession Reconsidered
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Privacy Is Not Sacred
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
Abortion Rights and Gun Rights
The States and the Constitution
Getting “Equal Protection” Right
How to Protect Property Rights and Freedom of Association and Expression
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
The Answer to Judicial Supremacy
There’s More to It Than Religious Liberty
Turning Points
Equal Protection in Principle and Practice
Polarization and De-facto Partition
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility
Restoring the Contract Clause
The Framers, Mob Rule, and a Fatal Error
Freedom of Speech: Getting It Right
Suicide or Destiny?
Freedom of Speech, to What End?
Nullification and Secession
The Constitution vs. Reality
Power Is Power
The Citizenship Question
Vive le collège électoral!
Liberty: Constitutional Obligations and the Role of Religion

Liberty: Constitutional Obligations and the Role of Religion

Posted on November 8, 2019 by Loquitur Veritatem

Fifteen years ago I opined that the Constitution levied the following implicit obligations on citizens:

Obey the law, generally

Pay taxes

Accept the money of the United States as legal tender

Respect patents, copyrights, and other recognized forms of intellectual property

Refrain from rebellion and insurrection

Serve in the armed forces (if the law requires it)

Refrain from committing treason

Serve on juries

Do not take anyone into slavery or involuntary servitude.

A jejune libertarian, Timothy Sandefur, objected:

On what grounds does the Constitution assign these obligations? What moral right does it have to impose these upon us?

The Constitution, as a document, can’t have a “moral right”. But let us suppose that what Sandefur really meant to ask was “what moral right did the Framers of the Constitution have to imposed these obligations on us?”. The answer is “none”, for reasons to which I will come. But that doesn’t prevent the Constitution from binding Americans — either by consent or coercion.

Given the inevitability of the state (anarchism is a fantasy), the real issue is not the Framers’ (nonexistent) moral right but the advantages of living under the Constitution (as written) rather than the many inferior alternatives that abound in the world (including living under the Constitution as it has been ignored and misinterpreted).

Which brings me to a basic and widely flouted obligation that the Constitution imposes, namely to preserve, protect, and defend it. More properly, to preserve, protect, and defend the way of life that the Constitution presupposes.

I make the latter point because I was reminded of it by a passage in “A Genuinely Transgressive Act: On the Dedication of Christ Chapel at Hillsdale College” (The New Criterion, November 2019). In his dedicatory remarks, Justice Clarence Thomas

quoted John Adams’s address to the Massachusetts militia in 1798: “our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” Thomas underscored the critical point, one that is missing from most lamentations about the failures of the educational establishment. “The preservation of liberty,” he said in his peroration, “is not guaranteed. Without the guardrails supplied by religious conviction, popular sovereignty can devolve into mob rule, unmoored from any conception of objective truth.”

To elaborate (and borrowing from an old post of mine), libertarians (like Sandefur) claim that libertarianism is a moral code, when it is in fact 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 Jennifer Roback Morse and Friedrich Hayek rightly argue (here and here), 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, 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. As one headline puts it, “In U.S., Decline of Christianity Continues at Rapid Pace“. 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 (in the hinterlands, at least).

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 (“Why Religion Is Good for Us”, New Statesman, April 21, 2003):

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.

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.

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, those who claim to love liberty ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

The Constitution vs. Reality

Posted on January 27, 2019 by Loquitur Veritatem

D.W. Brogan, in his foreword to Bertrand de Jouvenel‘s On Power, writes:

It is a dangerous and idle dream to think that the state can become ruled by philosophers turned kings or scientists turned commissars. For if philosophers become kings or scientists commissars, they become politicians, and the powers given to the state are powers given to men who are rulers of states, men subject to all the limitations and temptations of their dangerous craft. Unless this is borne in mind, there will be a dangerous optimistic tendency to sweep aside doubts and fears as irrelevant, since, in the state that the projectors have in mind, power will be exercised by men of a wisdom and degree of moral virtue that we have not yet seen. It won’t. It will be exercised by men first and rulers next and scientists or saints a long way after. It was an illusion of the framers of the early American constitutions that they could set up “a government of laws and not of men.” All governments are governments of men, though the better of them have a high admixture of law, too — that is, of effective limitations on the free action of the rulers.

I must say, in defense of the Framers of the Constitution of 1787 (the one that is still supposed to be the “law of the land”), that they had no illusions about the men who sought and wielded the state’s power. See, for example, Federalist No. 10 (James Madison), Federalist No. 15 (Alexander Hamilton), Federalist No. 55 (Madison), Federalist No. 58 (Madison), Federalist No. 63 (Madison), Federalist No. 71 (Hamilton), and Federalist No. 73 (Hamilton). (Relevant excerpts can be found here.)

For all of their wisdom, however, the Framers were far too optimistic about the effectiveness of the checks and balances in their design. Consider this, from Hamilton:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances is an example of what I call 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 national government to impose its will in matters far beyond its constitutional remit.

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 had 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 national 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 national government with powers greatly exceeding those of the Confederation 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 and the States’ ratifying conventions on the ability of the national government to hold itself in check. Thus the Constitution is lamentably silent on nullification and secession, which are real checks on power.

What has been done by presidents, Congresses, and courts probably will not be undone, except at the margin. 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.

At the close of the Constitutional Convention of 1787, Benjamin Franklin was queried as he left Independence Hall on the final day of deliberation, “Well, Doctor, what have we got—a Republic or a Monarchy?” Franklin responded, “A Republic, if you can keep it.”

What we have got now is a mobocracy at war with itself, under the guidance of power-seekers who aren’t fit to empty the Framers’ chamber-pots. The Republic envisioned by the Framers is a thing of the past. Its empty shell survives, but perhaps not for long.

Nullification and Secession

Posted on November 20, 2018 by Loquitur Veritatem

Joe Wolverton II, writing at The New American, quotes from a five-year old speech by Matthew Whitaker:

As a principle, it has been turned down by the courts and our federal government has not recognized it. Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?

Wolverton then mounts an effective defense of Whitaker’s position; for example:

… Whitaker asserted that the states “set up the federal government.” There is no logical way to dispute that historical fact.

When the Articles of Confederation (our first constitution) came under criticism from influential statesmen, Congress was compelled to invite delegates to a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”

Congress’ invitation was sent not to the people, but to the state governments. The state legislatures were invited to send a delegation to help repair rips in the constitutional fabric. This historical fact is irrefutable evidence that a functioning agreement for a government of the United State was the goal. That government, if it was to exist at all, would be the creation of the states that participated in the formation of it.

Additional evidence of the claim that the states were the only interested parties in the compact of the Constitution is found in the way votes were taken and recorded at the convention in Philadelphia. Representatives voted as states, not as individuals. In fact, the journal where those votes were recorded catalogs the yeas and nays according to the name of state, not the name of the delegate.

Another clue to the identity of the parties to the Constitution, is found in Articles V and VII of the document itself.

Article V requires that amendments be “ratified by the legislatures of three-fourths of the states or by conventions in three-fourths thereof.” Not only was the Constitution a binding contract among the states, but any alterations of the provisions of that contract had to be signed off by a super majority of the parties.

Next, the prose and purpose of Article VII makes the issue so clear as to permit no reasonable alternative interpretation. In this brief statement the role of the states as the sine qua non of the Constitution is established. Article VII reads, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Plainly and purposefully the framers of the Constitution recognized that the document they signed in September 1787 was an agreement among the states represented. Every article was written by the states, voted on by the states, accepted or rejected by the states, ultimately approved by the states, and it would only become binding upon states who ratified it.

Why were the people not polled or asked to vote up or down on the Constitution? Because this was neither a popular nor a national compact; it was a compact creating a confederation of sovereign states.

As constitutional attorney Kent Masterson Brown explains, “The idea that the constitution that they [the framers] had drafted and ratified was entered into ‘by the people,’ as opposed to the states, and was irrevocable once ratified was absolutely unknown to the framers and ratifiers.”

I would add that had these men been convinced that such an arrangement was advocated or even so much as contemplated by those pushing for acceptance of the Constitution, it never would have been ratified by the requisite number of states, and the embryonic American republic would have been stillborn in Philadelphia.

If nullification is to be successfully deployed and defended, states lawmakers must remember that the Constitution is a creature of the states and that the federal government was given very few and very limited powers over objects of national importance. Any act of Congress, the courts, or the president that exceeds that small scope is null, void, and of no legal effect.

Not once during the deliberations at the Constitutional Convention was there a proposal that their work be presented for approval to the body of the populace acting as individuals. From the beginning of the process that culminated on September 17, 1787 with the signing of the Constitution, it was understood that the ratification by at least nine states was the sine qua non of the start of the new government.

Still, the establishment and their media mouthpieces obstinately deny one irrefutable fact: The Constitution never would have gone into legal effect and the federal government never would have been created if state conventions had not met and ratified the document.

I have argued similarly many times. In “Constitution: Myths and Realities“, I say this about the myth that “the people” ratified the Constitution:

The idea that the Constitution is the creature of “the people” is balderdash. It is balderdash of a high order because it was lent credence by none other than John Marshall, Chief Justice of the Supreme Court from 1801 to 1835, whose many opinions shaped constitutional jurisprudence for better and for worse….

Marshall argues [in McCulloch v. Maryland (1819)] against a strawman of his own construction: the insinuation that the Constitution was somehow ratified by “the American people”. He does not come out and say that, but he implies that holding the ratifying conventions in the various States was necessary because of the impracticality of holding a national convention of “the people”. The fact is that the conventions in the States were of modest size. The table given here shows that the total number of delegates voting yea and nay in each State ranged from a low of 26 to a high of 355, for an average of 127 per State. This was hardly anything like “one common mass” of the American people. The 1,648 delegates who voted in the thirteen conventions represented about two-tenths of one percent of the free white males aged 16 and older at the time (and presumably far less than one-half of one percent of the free-white males considered eligible for a convention).

The fact is that the ratifying conventions were held in the States because it was left to each State whether to join the new union or remain independent. The conventions were conducted under the auspices of the State legislatures. They were, in effect, special committees with but one duty: to decide for each State whether the State would join the union.

This view is supported by Madison’s contemporaneous account of the ratification process:

[I]t appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [The Federalist No. 39, as published in the Independent Journal, January 16, 1788]

But I go further than Wolverton does (though he might agree with me). I concur in the legitimacy of nullification (which is a form of departmentalism). But I also argue that the Constitution’s provenance as a creature of the States makes secession a legal (constitutional) act. Here are excerpts of my model resolution of secession:

[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly legitimates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the national government.

The national government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which is but one of the ways in which the Constitution makes the national government a party to the constitutional contract. More generally, the high officials of the national government acknowledge that government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Those high officials have nevertheless have committed myriad abuses of the national government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….

As outlined above, the national government has routinely and massively violated 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.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Secession isn’t the only possible remedy for the central government’s long record of unconstitutional behavior. Go there and read the whole thing.

New Pages

Posted on August 31, 2018 by Loquitur Veritatem

In case you haven’t noticed the list in the right sidebar, I have converted several classic posts to pages, for ease of access. Some have new names; many combine several posts on the same subject:

Abortion Q & A

Climate Change

Constitution: Myths and Realities

Economic Growth Since World War II

Intelligence

Keynesian Multiplier: Fiction vs. Fact

Leftism

Movies

Spygate

Not-So-Random Thoughts (XXII)

Posted on August 10, 2018 by Loquitur Veritatem

This is a long-overdue entry; the previous one was posted on October 4, 2017. Accordingly, it is a long entry, consisting of these parts:

Censorship and Left-Wing Bias on the Web

The Real Collusion Story

“Suicide” of the West

Evolution, Intelligence, and Race

Will the Real Fascists Please Stand Up?

Consciousness

Empathy Is Over-Rated

“Nudging”

CENSORSHIP AND LEFT-WING BIAS ON THE WEB

It’s a hot topic these days. See, for example, this, this, this, this, and this. Also, this, which addresses Google’s slanting of search results about climate research. YouTube is at it, too.

A lot of libertarian and conservative commentators are loath to demand governmental intervention because the censorship is being committed by private companies: Apple, Facebook, Google, Twitter, YouTube, et al. Some libertarians and conservatives are hopeful that libertarian-conservative options will be successful (e.g., George Gilder). I am skeptical. I have seen and tried some of those options, and they aren’t in the same league as the left-wingers, which have pretty well locked up users and advertisers. (It’s called path-dependence.) And even if they finally succeed in snapping up a respectable share of the information market, the damage will have been done; libertarians and conservatives will have been marginalized, criminalized, and suppressed.

The time to roll out the big guns is now, as I explain here:

Given the influence that Google and the other members of the left-wing information-technology oligarchy exert in this country, that oligarchy is tantamount to a state apparatus….

These information-entertainment-media-academic institutions are important components of what I call the vast left-wing conspiracy in America. Their purpose and effect is the subversion of the traditional norms that made America a uniquely free, prosperous, and vibrant nation….

What will happen in America if that conspiracy succeeds in completely overthrowing “bourgeois culture”? The left will frog-march America in whatever utopian direction captures its “feelings” (but not its reason) at the moment…

Complete victory for the enemies of liberty is only a few election cycles away. The squishy center of the American electorate — as is its wont — will swing back toward the Democrat Party. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court, the dogmas of the information-entertainment-media-academic complex will become the law of the land….

[It is therefore necessary to] enforce the First Amendment against information-entertainment-media-academic complex. This would begin with action against high-profile targets (e.g., Google and a few large universities that accept federal money). That should be enough to bring the others into line. If it isn’t, keep working down the list until the miscreants cry uncle.

What kind of action do I have in mind?…

Executive action against state actors to enforce the First Amendment:

Amendment I to the Constitution says that “Congress shall make no law … abridging the freedom of speech”.

Major entities in the telecommunications, news, entertainment, and education industries have exerted their power to suppress speech because of its content. (See appended documentation.) The collective actions of these entities — many of them government- licensed and government-funded — effectively constitute a governmental violation of the Constitution’s guarantee of freedom of speech (See Smith v. Allwright, 321 U.S. 649 (1944) and Marsh v. Alabama, 326 U.S. 501 (1946).)

And so on. Read all about it here.

THE REAL COLLUSION STORY

Not quite as hot, but still in the news, is Spygate. Collusion among the White House, CIA, and FBI (a) to use the Trump-Russia collusion story to swing the 2016 election to Clinton, and (b) failing that, to cripple Trump’s presidency and provide grounds for removing him from office. The latest twist in the story is offered by Byron York:

Emails in 2016 between former British spy Christopher Steele and Justice Department official Bruce Ohr suggest Steele was deeply concerned about the legal status of a Putin-linked Russian oligarch, and at times seemed to be advocating on the oligarch’s behalf, in the same time period Steele worked on collecting the Russia-related allegations against Donald Trump that came to be known as the Trump dossier. The emails show Steele and Ohr were in frequent contact, that they intermingled talk about Steele’s research and the oligarch’s affairs, and that Glenn Simpson, head of the dirt-digging group Fusion GPS that hired Steele to compile the dossier, was also part of the ongoing conversation….

The newly-released Ohr-Steele-Simpson emails are just one part of the dossier story. But if nothing else, they show that there is still much for the public to learn about the complex and far-reaching effort behind it.

My take is here. The post includes a long list of related — and enlightening — reading, to which I’ve just added York’s piece.

“SUICIDE” OF THE WEST

Less “newsy”, but a hot topic on the web a few weeks back, is Jonah Goldberg’s Suicide of the West. It received mixed reviews. It is also the subject of an excellent non-review by Hubert Collins.

Here’s my take:

The Framers held a misplaced faith in the Constitution’s checks and balances (see Madison’s Federalist No. 51 and Hamilton’s Federalist No. 81). The Constitution’s wonderful design — containment of a strictly limited central government through horizontal and vertical separation of powers — worked rather well until the Progressive Era. The design then cracked under the strain of greed and the will to power, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The design then broke during the New Deal, which opened the floodgates to violations of constitutional restraint (e.g., Medicare, Medicaid, Obamacare, the vast expansion of economic regulation, and the destruction of civilizing social norms), as the Supreme Court has enabled the national government to impose its will in matters far beyond its constitutional remit.

In sum, the “poison pill” baked into the nation at the time of the Founding is human nature, against which no libertarian constitution is proof unless it is enforced resolutely by a benign power.

EVOLUTION, INTELLIGENCE, AND RACE

Evolution is closely related to and intertwined with intelligence and race. Two posts and a page of mine (here, here, and here) delve some of the complexities. The latter of the two posts draws on David Stove‘s critique of evolutionary theory, “So You Think You Are a Darwinian?“.

Fred Reed is far more entertaining than Stove, and no less convincing. His most recent columns on evolution are here and here. In the first of the two, he writes this:

What are some of the problems with official Darwinism? First, the spontaneous generation of life has not been replicated…. Nor has anyone assembled in the laboratory a chemical structure able to metabolize, reproduce, and thus to evolve. It has not been shown to be mathematically possible….

Sooner or later, a hypothesis must be either confirmed or abandoned. Which? When? Doesn’t science require evidence, reproducibility, demonstrated theoretical possibility? These do not exist….

Other serious problems with the official story: Missing intermediate fossils–”missing links”– stubbornly remain missing. “Punctuated equilibrium,” a theory of sudden rapid evolution invented to explain the lack of fossil evidence, seems unable to generate genetic information fast enough. Many proteins bear no resemblance to any others and therefore cannot have evolved from them. On and on.

Finally, the more complex an event, the less likely it is to occur by chance. Over the years, cellular mechanisms have been found to be ever more complex…. Recently with the discovery of epigenetics, complexity has taken a great leap upward. (For anyone wanting to subject himself to such things, there is The Epigenetics Revolution. It is not light reading.)

Worth noting is that that the mantra of evolutionists, that “in millions and millions and billions of years something must have evolved”–does not necessarily hold water. We have all heard of Sir James Jeans assertion that a monkey, typing randomly, would eventually produce all the books in the British Museum. (Actually he would not produce a single chapter in the accepted age of the universe, but never mind.) A strong case can be made that spontaneous generation is similarly of mathematically vanishing probability. If evolutionists could prove the contrary, they would immensely strengthen their case. They haven’t….

Suppose that you saw an actual monkey pecking at a keyboard and, on examining his output, saw that he was typing, page after page, The Adventures of Tom Sawyer, with no errors.

You would suspect fraud, for instance that the typewriter was really a computer programmed with Tom. But no, on inspection you find that it is a genuine typewriter. Well then, you think, the monkey must be a robot, with Tom in RAM. But this too turns out to be wrong: The monkey in fact is one. After exhaustive examination, you are forced to conclude that Bonzo really is typing at random.

Yet he is producing Tom Sawyer. This being impossible, you would have to conclude that something was going on that you did not understand.

Much of biology is similar. For a zygote, barely visible, to turn into a baby is astronomically improbable, a suicidal assault on Murphy’s Law. Reading embryology makes this apparent. (Texts are prohibitively expensive, but Life Unfolding serves.) Yet every step in the process is in accord with chemical principles.

This doesn’t make sense. Not, anyway, unless one concludes that something deeper is going on that we do not understand. This brings to mind several adages that might serve to ameliorate our considerable arrogance. As Haldane said, “The world is not only queerer than we think, but queerer than we can think.” Or Fred’s Principle, “The smartest of a large number of hamsters is still a hamster.”

We may be too full of ourselves.

On the subject of race, Fred is no racist, but he is a realist; for example:

We have black football players refusing to stand for the national anthem. They think that young black males are being hunted down by cops. Actually of course black males are hunting each other down in droves but black football players apparently have no objection to this. They do not themselves convincingly suffer discrimination. Where else can you get paid six million green ones a year for grabbing something and running? Maybe in a district of jewelers.

The non-standing is racial hostility to whites. The large drop in attendance of games, of television viewership, is racial blowback by whites. Millions of whites are thinking, that, if America doesn’t suit them, football players can afford a ticket to Kenya. While this line of reasoning is tempting, it doesn’t really address the problem and so would be a waste of time.

But what, really, is the problem?

It is one that dare not raise its head: that blacks cannot compete with whites, Asians, or Latin-Americans. Is there counter-evidence? This leaves them in an incurable state of resentment and thus hostility. I think we all know this: Blacks know it, whites know it, liberals know it, and conservatives know it. If any doubt this, the truth would be easy enough to determine with carefully done tests. [Which have been done.] The furious resistance to the very idea of measuring intelligence suggests awareness of the likely outcome. You don’t avoid a test if you expect good results.

So we do nothing while things worsen and the world looks on astounded. We have mob attacks by Black Lives Matter, the never-ending Knockout Game, flash mobs looting stores and subway trains, occasional burning cities, and we do nothing. Which makes sense, because there is nothing to be done short of restructuring the country.

Absolute, obvious, unacknowledged disaster.

Regarding which: Do we really want, any of us, what we are doing? In particular, has anyone asked ordinary blacks, not black pols and race hustlers. “Do you really want to live among whites, or would you prefer a safe middle-class black neighborhood? Do your kids want to go to school with whites? If so, why? Do you want them to? Why? Would you prefer black schools to decide what and how to teach your children? Keeping whites out of it? Would you prefer having only black police in your neighborhood?”

And the big one: “Do you, and the people you actually know in your neighborhood, really want integration? Or is it something imposed on you by oreo pols and white ideologues?”

But these are things we must never think, never ask.

Which brings me to my most recent post about blacks and crime, which is here. As for restructuring the country, Lincoln saw what was needed.

The touchy matter of intelligence — its heritability and therefore its racial component — is never far from my thoughts. I commend to you Gregory Hood’s excellent piece, “Forbidden Research: How the Study of Intelligence is Crippled by Ideology“. Hood mentions some of the scientists whose work I have cited in my writings about intelligence and its racial component. See this page, for example, which give links to several related posts and excerpts of relevant research about intelligence. (See also the first part of Fred Reed’s post “Darwin’s Vigilantes, Richard Sternberg, and Conventional Pseudoscience“.)

As for the racial component, my most recent post on the subject (which provides links to related posts) addresses the question “Why study race and intelligence?”. Here’s why:

Affirmative action and similar race-based preferences are harmful to blacks. But those preferences persist because most Americans do not understand that there are inherent racial differences that prevent blacks, on the whole, from doing as well as whites (and Asians) in school and in jobs that require above-average intelligence. But magical thinkers (like [Professor John] McWhorter) want to deny reality. He admits to being driven by hope: “I have always hoped the black–white IQ gap was due to environmental causes.”…

Magical thinking — which is rife on the left — plays into the hands of politicians, most of whom couldn’t care less about the truth. They just want the votes of those blacks who relish being told, time and again, that they are “down” because they are “victims”, and Big Daddy government will come to their rescue. But unless you are the unusual black of above-average intelligence, or the more usual black who has exceptional athletic skills, dependence on Big Daddy is self-defeating because (like a drug addiction) it only leads to more of the same. The destructive cycle of dependency can be broken only by willful resistance to the junk being peddled by cynical politicians.

It is for the sake of blacks that the truth about race and intelligence ought to be pursued — and widely publicized. If they read and hear the truth often enough, perhaps they will begin to realize that the best way to better themselves is to make the best of available opportunities instead of moaning abut racism and relying on preferences and handouts.

WILL THE REAL FASCISTS PLEASE STAND UP?

I may puke if I hear Trump called a fascist one more time. As I observe here,

[t]he idea … that Trump is the new Hitler and WaPo [The Washington Post] and its brethren will keep us out of the gas chambers by daring to utter the truth (not)…. is complete balderdash, inasmuch as WaPo and its ilk are enthusiastic hand-maidens of “liberal” fascism.

“Liberals” who call conservatives “fascists” are simply engaging in psychological projection. This is a point that I address at length here.

As for Mr. Trump, I call on Shawn Mitchell:

A lot of public intellectuals and writers are pushing an alarming thesis: President Trump is a menace to the American Republic and a threat to American liberties. The criticism is not exclusively partisan; it’s shared by prominent conservatives, liberals, and libertarians….

Because so many elites believe Trump should be impeached, or at least shunned and rendered impotent, it’s important to agree on terms for serious discussion. Authoritarian means demanding absolute obedience to a designated authority. It means that somewhere, someone, has unlimited power. Turning the focus to Trump, after 15 months in office, it’s impossible to assign him any of those descriptions….

…[T]here are no concentration camps or political arrests. Rather, the #Resistance ranges from fervent to rabid. Hollywood and media’s brightest stars regularly gather at galas to crudely declare their contempt for Trump and his deplorable supporters. Academics and reporters lodged in elite faculty lounges and ivory towers regularly malign his brains, judgment, and temperament. Activists gather in thousands on the streets to denounce Trump and his voters. None of these people believe Trump is an autocrat, or, if they do they are ignorant of the word’s meaning. None fear for their lives, liberty, or property.

Still, other elites pile on. Federal judges provide legal backup, contriving frivolous theories to block administrations moves. Some rule Trump lacks even the authority to undo by executive order things Obama himself introduced by executive order. Governors from states like California, Oregon and New York announce they will not cooperate with administration policy (current law, really) on immigration, the environment, and other issues.

Amidst such widespread rebellion, waged with impunity against the constitutionally elected president, the critics’ dark warnings that America faces a dictator are more than wrong; they are surreal and damnable. They are what amounts to the howl of that half the nation still refusing to accept election results it dislikes.

Conceding Trump lacks an inmate or body count, critics still offer theories to categorize him in genus monsterus. The main arguments cite Trump’s patented belligerent personality and undisciplined tweets, his use of executive orders; his alleged obstruction in firing James Comey and criticizing Robert Mueller, his blasts at the media, and his immigration policies. These attacks weigh less than the paper they might be printed on.

Trump’s personality doubtless is sui generis for national office. If he doesn’t occasionally offend listeners they probably aren’t listening. But so what? Personality is not policy. A sensibility is not a platform, and bluster and spittle are not coercive state action. The Human Jerk-o-meter could measure Trump in the 99th percentile, and the effect would not change one law, eliminate one right, or jail one critic.

Executive Orders are misunderstood. All modern presidents used them. There is nothing wrong in concept with executive orders. Some are constitutional some are not. What matters is whether they direct executive priorities within U.S. statutes or try to push authority beyond the law to change the rights and duties of citizens. For example, a president might order the EPA to focus on the Clean Air Act more than the Clean Water Act, or vice versa. That is fine. But, if a president orders the EPA to regulate how much people can water their lawns or what kind of lawns to plant, the president is trying to legislate and create new controls. That is unconstitutional.

Many of Obama’s executive orders were transgressive and unconstitutional. Most of Trump’s executive orders are within the law, and constitutional. However that debate turns out, though, it is silly to argue the issue implicates authoritarianism.

The partisan arguments over Trump’s response to the special counsel also miss key points. Presidents have authority to fire subordinates. The recommendation authored by Deputy Attorney General Rod Rosenstein provides abundant reason for Trump to have fired James Comey, who increasingly is seen as a bitter anti-Trump campaigner. As for Robert Mueller, criticizing is not usurping. Mueller’s investigation continues, but now readily is perceived as a target shoot, unmoored from the original accusations about Russia, in search of any reason to draw blood from Trump. Criticizing that is not dictatorial, it is reasonable.

No doubt Trump criticizes the media more than many modern presidents. But criticism is not oppression. It attacks not freedom of the press but the credibility of the press. That is civically uncomfortable, but the fact is, the war of words between Trump and the media is mutual. The media attacks Trump constantly, ferociously and very often inaccurately as Mollie Hemingway and Glenn Greenwald document from different political perspectives. Trump fighting back is not asserting government control. It is just challenging media assumptions and narratives in a way no president ever has. Reporters don’t like it, so they call it oppression. They are crybabies.

Finally, the accusation that Trump wants to enforce the border under current U.S. laws, as well as better vet immigration from a handful of failed states in the Middle East with significant militant activity hardly makes him a tyrant. Voters elected Trump to step up border enforcement. Scrutinizing immigrants from a handful of countries with known terrorist networks is not a “Muslim ban.” The idea insults the intelligence since there are about 65 majority Muslim countries the order does not touch.

Trump is not Hitler. Critics’ attacks are policy disputes, not examples of authoritarianism. The debate is driven by sore losers who are willing to erode norms that have preserved the republic for 240 years.

Amen.

CONSCIOUSNESS

For a complete change of pace I turn to a post by Bill Vallicella about consciousness:

This is an addendum to Thomas Nagel on the Mind-Body Problem. In that entry I set forth a problem in the philosophy of mind, pouring it into the mold of an aporetic triad:

1) Conscious experience is not an illusion.

2) Conscious experience has an essentially subjective character that purely physical processes do not share.

3) The only acceptable explanation of conscious experience is in terms of physical properties alone.

Note first that the three propositions are collectively inconsistent: they cannot all be true. Any two limbs entail the negation of the remaining one. Note second that each limb exerts a strong pull on our acceptance. But we cannot accept them all because they are logically incompatible.

This is one hard nut to crack. So hard that many, following David Chalmers, call it, or something very much like it, the Hard Problem in the philosophy of mind. It is so hard that it drives some into the loony bin. I am thinking of Daniel Dennett and those who have the chutzpah to deny (1)….

Sophistry aside, we either reject (2) or we reject (3). Nagel and I accept (1) and (2) and reject (3). Those of a scientistic stripe accept (1) and (3) and reject (2)….

I conclude that if our aporetic triad has a solution, the solution is by rejecting (3).

Vallicella reaches his conclusion by subtle argumentation, which I will not attempt to parse in this space.

My view is that (2) is false because the subjective character of conscious experience is an illusion that arises from the physical properties of the central nervous system. Consciousness itself is not an illusion. I accept (1) and (3). For more, see this and this.

EMPATHY IS OVER-RATED

Andrew Scull addresses empathy:

The basic sense in which most of us use “empathy” is analogous to what Adam Smith called “sympathy”: the capacity we possess (or can develop) to see the world through the eyes of another, to “place ourselves in his situation . . . and become in some measure the same person with him, and thence from some idea of his sensations, and even feel something which, though weaker in degree, is not altogether unlike them”….

In making moral choices, many would claim that empathy in this sense makes us more likely to care about others and to consider their interests when choosing our own course of action….

Conversely, understanding others’ feelings doesn’t necessarily lead one to treating them better. On the contrary: the best torturers are those who can anticipate and intuit what their victims most fear, and tailor their actions accordingly. Here, Bloom effectively invokes the case of Winston Smith’s torturer O’Brien in Orwell’s Nineteen Eighty-four, who is able to divine the former’s greatest dread, his fear of rats, and then use it to destroy him.

Guest blogger L.P. addressed empathy in several posts: here, here, here, here, here, and here. This is from the fourth of those posts:

Pro-empathy people think less empathetic people are “monsters.” However, as discussed in part 2 of this series, Baron-Cohen, Kevin Dutton in The Wisdom of Psychopaths, and other researchers establish that empathetic people, particularly psychopaths who have both affective and cognitive empathy, can be “monsters” too.

In fact, Kevin Dutton’s point about psychopaths generally being able to blend in and take on the appearance of the average person makes it obvious that they must have substantial emotional intelligence (linked to cognitive empathy) and experience of others’ feelings in order to mirror others so well….

Another point to consider however, as mentioned in part 1, is that those who try to empathize with others by imagining how they would experience another’s situation aren’t truly empathetic. They’re just projecting their own feelings onto others. This brings to mind Jonathan Haidt’s study on morality and political orientation. On the “Identification with All of Humanity Scale,” liberals most strongly endorsed the dimension regarding identification with “everyone around the world.” (See page 25 of “Understanding Libertarian Morality: The psychological roots of an individualist ideology.”) How can anyone empathize with billions of persons about whom one knows nothing, and a great number of whom are anything but liberal?

Haidt’s finding is a terrific example of problems with self-evaluation and self-reported data – liberals overestimating themselves in this case. I’m not judgmental about not understanding everyone in the world. There are plenty of people I don’t understand either. However, I don’t think people who overestimate their ability to understand people should be in a position that allows them to tamper with, or try to “improve,” the lives of people they don’t understand….

I conclude by quoting C. Daniel Batson who acknowledges the prevailing bias when it comes to evaluating altruism as a virtue. This is from his paper, “Empathy-Induced Altruistic Motivation,” written for the Inaugural Herzliya Symposium on Prosocial Motives, Emotions, and Behavior:

[W]hereas there are clear social sanctions against unbridled self-interest, there are not clear sanctions against altruism. As a result, altruism can at times pose a greater threat to the common good than does egoism.

“NUDGING”

I have addressed Richard Thaler and Cass Sunstein’s “libertarian” paternalism and “nudging in many posts. (See this post, the list at the bottom of it, and this post.) Nothing that I have written — clever and incisive as it may be — rivals Deirdre McCloskey’s take on Thaler’s non-Nobel prize, “The Applied Theory of Bossing“:

Thaler is distinguished but not brilliant, which is par for the course. He works on “behavioral finance,” the study of mistakes people make when they talk to their stock broker. He can be counted as the second winner for “behavioral economics,” after the psychologist Daniel Kahneman. His prize was for the study of mistakes people make when they buy milk….

Once Thaler has established that you are in myriad ways irrational it’s much easier to argue, as he has, vigorously—in his academic research, in popular books, and now in a column for The New York Times—that you are too stupid to be treated as a free adult. You need, in the coinage of Thaler’s book, co-authored with the law professor and Obama adviser Cass Sunstein, to be “nudged.” Thaler and Sunstein call it “libertarian paternalism.”*…

Wikipedia lists fully 257 cognitive biases. In the category of decision-making biases alone there are anchoring, the availability heuristic, the bandwagon effect, the baseline fallacy, choice-supportive bias, confirmation bias, belief-revision conservatism, courtesy bias, and on and on. According to the psychologists, it’s a miracle you can get across the street.

For Thaler, every one of the biases is a reason not to trust people to make their own choices about money. It’s an old routine in economics. Since 1848, one expert after another has set up shop finding “imperfections” in the market economy that Smith and Mill and Bastiat had come to understand as a pretty good system for supporting human flourishing….

How to convince people to stand still for being bossed around like children? Answer: Persuade them that they are idiots compared with the great and good in charge. That was the conservative yet socialist program of Kahneman, who won the 2002 Nobel as part of a duo that included an actual economist named Vernon Smith…. It is Thaler’s program, too.

Like with the psychologist’s list of biases, though, nowhere has anyone shown that the imperfections in the market amount to much in damaging the economy overall. People do get across the street. Income per head since 1848 has increased by a factor of 20 or 30….

The amiable Joe Stiglitz says that whenever there is a “spillover” — my ugly dress offending your delicate eyes, say — the government should step in. A Federal Bureau of Dresses, rather like the one Saudi Arabia has. In common with Thaler and Krugman and most other economists since 1848, Stiglitz does not know how much his imagined spillovers reduce national income overall, or whether the government is good at preventing the spill. I reckon it’s about as good as the Army Corps of Engineers was in Katrina.

Thaler, in short, melds the list of psychological biases with the list of economic imperfections. It is his worthy scientific accomplishment. His conclusion, unsupported by evidence?

It’s bad for us to be free.

CORRECTION: Due to an editing error, an earlier version of this article referred to Thaler’s philosophy as “paternalistic libertarianism.” The correct term is “libertarian paternalism.”

No, the correct term is paternalism.

I will end on that note.

Constitution: Myths and Realities

Posted on June 16, 2018 by Loquitur Veritatem

A new page, here. It’s very long, but it consolidates and organizes several old posts.

Freedom of Speech: Getting It Right

Posted on May 23, 2018 by Loquitur Veritatem

Congress shall make no law … abridging the freedom of speech….

Constitution of the United States, Amendment I

* * *

[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others….

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

John Stuart Mill, On Liberty (1869), Chapter I and Chapter II

* * *

[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Oliver Wendell Holmes Jr., Schenck v. United States (1919)

* * *

To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.

Louis D. Brandeis, Whitney v. People of State of California (1927),
joined by Holmes

* * *

The First Amendment has been systematically misapplied for the past 100 years, thanks mainly to Holmes and Brandeis. Mill’s generalizations are fatuous nonsense. Here is a palate-cleanser:

[O]nly where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.

And therein lies the dangerous folly of free-speech absolutism….

The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty….

[Mill’s harm principle] is empty rhetoric….

Harm must be defined. And its definition must arise from voluntarily evolved social norms. Such norms evince and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing, peaceful coexistence and beneficially cooperative behavior?

Behavior is shaped by social norms. Those norms once were rooted in the Ten Commandments and time-tested codes of behavior. They weren’t nullified willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media, and made law by the Supreme Court. What were those norms? Here are some of the most important ones:

Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.

Marriage comes before children. This is not because people are pure at heart, but because it is the responsible way to start life together and to ensure that one’s children enjoy a stable, nurturing home life.

Marriage is until “death do us part.” Divorce is a recourse of last resort, not an easy way out of marital and familial responsibilities or the first recourse when one spouse disappoints or angers the other.

Children are disciplined — sometimes spanked — when they do wrong. They aren’t given long, boring, incomprehensible lectures about why they’re doing wrong. Why not? Because they usually know they’re doing wrong and are just trying to see what they can get away with.

Drugs are taken for the treatment of actual illnesses, not for recreational purposes.

Income is earned, not “distributed.” Persons who earn a lot of money are to be respected. If you envy them to the point of wanting to take their money, you’re a pinko-commie-socialist (no joke).

People should work, save, and pay for their own housing. The prospect of owning one’s own home, by dint of one’s own labor, is an incentive to work hard and to advance oneself through the acquisition of marketable skills.

Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities….

A mother who devotes time and effort to the making of a good home and the proper rearing of her children is a pillar of civilized society. Her life is to be celebrated, not condemned as “a waste.”

Homosexuality is a rare, aberrant kind of behavior. (And that was before AIDS proved it to be aberrant.) It’s certainly not a “lifestyle” to be celebrated and shoved down the throats of all who object to it.

Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.

Addiction isn’t a disease; it’s a surmountable failing….

Justice is a dish best served hot, so that would-be criminals can connect the dots between crime and punishment. Swift and sure punishment is the best deterrent of crime. Capital punishment is the ultimate deterrent because an executed killer can’t kill again.

Peace is the result of preparedness for war; lack of preparedness invites war.

The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: respect others, respect tradition, restrict government to the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on mutual trust and respect. That’s all it takes — not big government bent on dictating new norms just because it can.

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization….

The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.

But that’s not the end of it. There’s a reverse slippery-slope effect when it comes to ideas opposed by the left. There are, for example, speech codes at government-run universities; hate-crime laws, which effectively punish speech that offends a patronized group; and penalties in some States for opposing same-sex “marriage”….

In sum, there is no longer such a thing as the kind of freedom of speech intended by the Framers of the Constitution. There is on the one hand license for “speech” that subverts and flouts civilizing social norms — the norms that underlie liberty. There is on the other hand a growing tendency to suppress speech that supports civilizing social norms.

“Freedom of Speech and the Long War for Constitutional Governance“,
Politics and Prosperity

* * *

The Constitution: Myths and Realities

Posted on May 15, 2018 by Loquitur Veritatem

I have posted The Constitution: Myths and Realities at Realities. This very long article reworks and consolidates many posts at Politics & Prosperity. It’s worth your time if you haven’t thought critically about the role of the States in the creation of the Constitution, the legality of secession, and much more, including a strong argument that Americans aren’t morally bound by the Constitution.

The article runs 15,000 words, but still omits much relevant material from this blog. Thus the links to 21 posts in the pingbacks at the bottom of the article. Follow the links there for complementary and supplementary readings.

The Framers, Mob Rule, and a Fatal Error

Posted on March 22, 2018 by Loquitur Veritatem

The wise men who framed the Constitution would be aghast at the current, orchestrated, leftist-backed “children’s march” to stir up broad support for gun ~~control~~ confiscation. Not only because they saw gun ownership as an inalienable and necessary right, but also because they saw the mob for what it was — an enemy of reason and liberty. They saw, too, that a legislature could act like a mob; thus:

Federalist No. 10 (James Madison) —

[I]t may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.

Federalist No. 15 (Alexander Hamilton) —

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.

Federalist No. 55 (Madison) —

Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

Federalist No. 58 (Madison) —

[T]he more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few.

Federalist No. 63 (Madison) —

[T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Federalist No. 71 (Hamilton) —

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it.

Federalist No. 73 (Hamilton) —

The primary inducement to conferring the power in question [the veto] upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.

For all of their wisdom, however, the Framers were far too optimistic about the effectiveness of the checks and balances in their design. Consider this, from Hamilton:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

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 had 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 and the States’ ratifying conventions 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.

Related reading: Jared Taylor, “A Libertarian for Our Side” (a review of Hans-Hermann Hoppe’s Democracy — The God that Failed: The Economics and Politics of Monarchy, Democracy and Natural Order), American Renaissance, January 2002

See also “The Constitution: Myths and Realities“.

Restoring the Contract Clause

Posted on March 13, 2018 by Loquitur Veritatem

Here is George Leef, writing today at National Review online:

For decades, the Court has allowed the Constitution’s contract clause (in Article I, Section 10, along with other things the states aren’t allowed to do) atrophy. It reads “No state shall enact any law impairing the obligation of contracts” and was meant to help stabilize the national economy at a time when the states often passed laws that rewrote or erased contracts to benefit certain parties or themselves….

The good news is that the Court is about to hear arguments in a case that could revive the Originalist view of the contract clause. I write about that case in my latest article for Forbes.

Leef fleshes out the sad story of the Contract Clause in the Forbes piece:

American courts took the Contract Clause very seriously until the New Deal. Professor James W. Ely’s recent book The Contract Clause: A Constitutional History (which I reviewed here) recounts the way the Marshall Court esteemed the clause and how it held up quite well (although with some erosion) during the “Progressive” era.

Then came the Great Depression.

Just as the Court turned its back on other cornerstones of limited government and the rule of law during that era, so did it jettison the once-formidable Contract Clause. In a 1934 decision, Home Building & Loan Association v. Blaisdell, Chief Justice Hughes decided that during the “emergency” of the Depression, the Court had to allow legislatures to impose a moratorium on mortgage foreclosures. In an early exemplar of “living Constitution” theory, the Chief Justice said that the Contract Clause “is not an absolute one and is not to be read with literal exactness….” He went on to say that the Constitution’s restraints on power “must not be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them.”

Just imagine if the First Amendment had been treated that way, giving the government wide latitude to censor or punish free speech and the press on the breezy, “Well, times have changed” approach. The First Amendment would be cowering in the shadows today.

Conversely, imagine if the Court had developed a robust, pro-contract jurisprudence based on the Contract Clause to match its pro-speech jurisprudence emanating the its favored First Amendment. Lots of governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want — would have been prevented, such as minimum wage laws.

But that’s not what happened to the Contract Clause. The courts kept allowing the states to whittle away at it by devising a three-factor “balancing test” whereby the assertion of the slightest state interest in meddling with contracts was usually good enough….

But what’s wrong with the current approach to the Contract Clause, one that, as Chief Justice Hughes said in Blaisdell is based on the “growing appreciation of public needs and the necessity of finding ground for a rational compromise between individual rights and public welfare”?

A lot, Ely argues. It tears apart the plain meaning of the Clause, whose words, wrote Chief Justice Marshall, “are express and incapable of being misunderstood.” Nor, Ely continues, was there ever any justification for the politically expedient “let’s forget about this Clause because the country is facing an emergency” rationale of Blaisdell and subsequent cases. The truth is that the Clause was inserted precisely because the nation needed contractual stability in the distressed times of 1787 and no amount of economic turmoil can be alleviated by allowing states to rewrite contracts….

Furthermore, Ely contends, the current interpretation of the Clause (again, Marshall would laugh at the idea that it needs any “interpretation”) is far too vague, giving lower courts little guidance. They are only supposed to apply the Contract Clause only if the legislative interference is “substantial” and “unreasonable.” Ely comments, “Yet it is sadly ironic that the Court has fashioned such an amorphous test for the Contract Clause – the one constitutional provision that, more than any other, was designed to ensure stability and predictability in commercial relationships.”

The Supreme Court will hear oral arguments in the case [of Sveen v. Melin] on March 19. It would be one of the great results of its current term if the justices would not merely uphold the Eighth Circuit [which upheld the contract at issue, despite a Minnesota law that abrogated it] but also give a full-throated declaration that the Contract Clause will henceforth be read just as it was written.

The Supreme Court of 1934 effectively ripped the Contract Clause out of the Constitution. I fervently hope for its restoration. Many things are at stake. As Leef says, a living Contract Clause would have prevented “governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want”. Leef mentions minimum wage laws as an example. In the same category, namely, laws that inhibit job creation, are mandates that require paid family leave and paid sick leave. (The latter was recently dictated by the proglodytes of Austin”s city council.)

Had the Court not killed the Contract Clause in 1934, compulsory recognition of labor unions — one of the biggest job-killers of them all — could have been made purely optional in 1937. It was then that the Court decided in favor of the Wagner Act by invoking the Commerce Clause.

The Commerce Clause has had a long and dishonorable career as an all-purpose justification for dictatorship from D.C. It was taken down a peg in NFIB v. Sibelius (2014) — the nugget of gold in a disgraceful opinion that salvaged Obamacare by other means.

In any event, here’s to the restoration of the Contract Clause — and to the demise of the “modern” reading of the Commerce Clause.

See also “The Constitution: Myths and Realities“.

Another (Big) Problem with “Nudging”

Posted on October 13, 2017 by Loquitur Veritatem

I’ve written recently about Richard Thaler’s Nobel prize and my objections to his (and Cass Sunstein’s) cheerleading for “nudging”. That’s a polite term for the use of business and government power to get people to make the “right” decisions. (“Right” according to Thaler, at least.) It’s the government part that really bothers me. Ilya Somin of The Volokh Conspiracy is of the same mind:

Thaler and many other behavioral economics scholars argue that government should intervene to protect people against their cognitive biases, by various forms of paternalistic policies. In the best-case scenario, government regulators can “nudge” us into correcting our cognitive errors, thereby enhancing our welfare without significantly curtailing freedom.

But can we trust government to be less prone to cognitive error than the private-sector consumers whose mistakes we want to correct? If not, paternalistic policies might just replace one form of cognitive bias with another, perhaps even worse one. Unfortunately, a recent study suggests that politicians are prone to severe cognitive biases too – especially when they consider ideologically charged issues….

Even when presented additional evidence to help them correct their mistakes, Dahlmann and Petersen found that the politicians tended to double down on their errors rather than admit they might have been wrong….

Politicians aren’t just biased in their evaluation of political issues. Many of them are ignorant, as well. For example, famed political journalist Robert Kaiser found that most members of Congress know little about policy and “both know and care more about politics than about substance.”….

But perhaps voters can incentivize politicians to evaluate evidence more carefully. They can screen out candidates who are biased and ill-informed, and elect knowledgeable and objective decision-makers. Sadly, that is unlikely to happen, because the voters themselves also suffer from massive political ignorance, often being unaware of even very basic facts about public policy.

Of course, the Framers of the Constitution understood all of this in 1787. And they wisely acted on it by placing definite limits on the power of the central government. The removal of those limits, especially during and since the New Deal, is a constitutional tragedy.

Lincoln Was Wrong

Posted on May 25, 2017 by Loquitur Veritatem

Michael Stokes Paulsen and his son Luke opine:

[A]t the heart of the Civil War, the crisis that triggered it, and the changes that it brought were enormous constitutional issues. Indeed, it is no exaggeration to say that the Civil War was fought over the meaning of the Constitution, and over who would have the ultimate power to decide that meaning. The Civil War decided—on the battlefields rather than in the courts—the most important constitutional questions in our nation’s history: the nature of the Union under the Constitution, the status and future of slavery, the powers of the national government versus the states, the supremacy of the Constitution, and the wartime powers of the president as commander in chief. It was the Civil War, not any subsequent judicial decision, that “overruled” the Supreme Court’s atrocious decision in Dred Scott v. Sandford creating a national constitutional right to own slaves….

The United States is the nation it is today because of Lincoln’s unwavering commitment to the Constitution as governing a single, permanent nation and forbidding secession. Lincoln’s vision of Union is so thoroughly accepted today that we forget how hotly disputed it was for the first seventy years of our nation’s history. The result was hardly inevitable. Lincoln’s vision and resolve saved the nation. Lincoln’s nationalist views have shaped every issue of federalism and sovereignty for the past one hundred fifty years. Compared with the constitutional issues over which the Civil War was fought, today’s disputes over federal- versus-state power are minor-league ball played out on a field framed by Lincoln’s prevailing constitutional vision of the United States as one nation, indivisible.

On the president’s constitutional duty: Lincoln understood his oath to impose an absolute personal moral and legal duty not to cave in to wrong, destructive views of the Constitution. He fought on the campaign trail for his understanding of Union and of the authority of the national government to limit the spread of slavery. Once in office, he understood his oath to impose on him an irreducible moral and legal duty of faithful execution of the laws, throughout the Union. It was a duty he could not abandon for any reason. [“The Great Interpreter”, University of St. Thomas (Minnesota) Research Paper No. 15-09, April 17, 2017]

Whence Lincoln’s view of the Union? This is from the Paulsens’ book, The Constitution: An Introduction:

Lincoln was firmly persuaded that secession was unconstitutional. Immediately upon taking office as President, in his First Inaugural Address, Lincoln— a careful constitutional lawyer— laid out in public his argument as to why secession was unconstitutional: The Constitution was the supreme law of the land, governing all the states. The Constitution did not provide that states could withdraw from the Union, and to infer such a right was contrary to the letter and spirit of the document. The Constitution’s Preamble announced the objective of forming a “more perfect Union” of the states than had existed under the Articles of Confederation, which themselves had said that the Union would be “perpetual.” Moreover, the Constitution created a true national government, not a mere “compact,” league, or confederacy— in fact, it explicitly forbade states from entering into alliances, confederacies, or treaties outside of national authority. The people of the United States, taken as a whole, were sovereign, not the states.

It followed from these views, Lincoln argued, that “no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.” Purported secession was simply an illegal— unconstitutional— rebellion against the Union.

Lincoln’s position, which the Paulsens seem to applaud, is flawed at its root. The Constitution did not incorporate the Articles of Confederation, it supplanted them. The “perpetual Union” of the Articles vanished into thin air upon the adoption of the Constitution. Moreover, the “more perfect Union” of the Constitution’s preamble is merely aspirational, as are the desiderata that follow it:

establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

“More perfect”, if it means anything, means that the Constitution created a central government where there was none before. The Constitution is silent about perpetuity. It is silent about secession. Therefore, one must turn elsewhere to find (or reject) a legal basis for secession, but not to the Civil War.

The Civil War “decided” the issue of secession in the same way that World War I “decided” the future of war. It was the “war to end all wars”, was it not? Therefore, tens of millions of deaths to the contrary notwithstanding, there have been no wars since the Armistice of 1918. By the same logic, the thief who steals your car or the vandal who defaces your home or the scam artist who takes your life savings has “decided” that you don’t own a car, or that your home should be ugly, or that your savings are really his. Thus does might make right, as the Paulsens would have it.

There is in fact a perfectly obvious and straightforward case for unilateral secession, which I have made elsewhere, including “A Resolution of Secession”. You should read all of it if you are a rabid secessionist — or a rabid anti-secessionist. Here are some key passages:

The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the central government….

Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity….

[I]n The Federalist No. 39, which informed the debates in the various States about ratification….

Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?

There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual….

The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were 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 the Colonies were not 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 States, as authorized by the people thereof.

In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States….

[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly necessitates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the central government.

The central government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which alone makes the central government a responsible party. More generally, the high officials of the central government acknowledge the central government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Many of those high officials have nevertheless have committed myriad abuses of the central government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

See “The Constitution: Myths and Realities“.

A Nation of Immigrants, a Nation of Enemies

Posted on January 31, 2017 by Loquitur Veritatem

I’m sick and tired of hearing that the United States is a nation of immigrants. So what if the United States is a nation of immigrants? The real issue is whether immigrants wish to become Americans in spirit, not in name only — loyal to the libertarian principles of the Constitution or cynical abusers of it.

I understand and sympathize with the urge to live among people with whom one shares a religion, a language, and customs. Tribalism is a deeply ingrained trait. It is not necessarily a precursor to aggression, contrary to the not-so-subtle message (aimed at white Americans) of the UN propaganda film that I was subjected to in high school. And the kind of tribalism found in many American locales, from the barrios of Los Angeles to the disappearing German communities of Texas to the Orthodox Jewish enclaves of New York City, is harmless compared with Reconquista and Sharia.

Proponents of such creeds don’t want to become Americans whose allegiance is to the liberty promised by the Constitution. They are cynical abusers of that liberty, whose insidious rhetoric is evidence against free-speech absolutism.

But they are far from the only abusers of that liberty. It is unnecessary to import enemies when there is an ample supply of them among native-born Americans. Well, they are Americans in name because they were born in the United States and (in most cases) haven’t formally renounced their allegiance to the Constitution. But they are its enemies, no matter how cleverly they twist its meaning to support their anti-libertarian creed.

I am speaking of the left, of course. Lest we forget, the real threat to liberty in America is home-grown. The left’s recent hysterical hypocrisy leads me to renounce my naive vow to be a kinder, gentler critic of the left’s subversive words and deeds.

* * *

Freedom of Speech and the Long War for Constitutional Governance

Posted on December 6, 2016 by Loquitur Veritatem

Freedom of speech is at the heart of the war between the friends and enemies of liberty. The Constitution’s guarantee of freedom of speech is misunderstood. The social order that underlies liberty has been undermined by the Supreme Court’s free-speech absolutism. At the same time, the kind of speech that should be protected by the First Amendment is increasingly suppressed by the enemies of liberty, who will find succor in Justice Kennedy’s ruling in Obergefell v. Hodges.

The restoration of freedom of speech, properly understood, will take a long time and determined action by conservatives. It will require a counter-revolution against the insidious, decades-long spread of leftist doctrines by “educators” and the media.

THE SLIPPERY SLOPE AWAY FROM REASONED DISSENT

Bill Vallicella (Maverick Philosopher) characteristically asks a tough question, and answers it:

Ought flag burning come under the rubric of protected speech? Logically prior question: Is it speech at all? What if I make some such rude gesture in your face as ‘giving you the finger.’ Is that speech? If it is, I would like to know what proposition it expresses. ‘Fuck you!’ does not express a proposition. Likewise for the corresponding gesture with the middle finger. And if some punk burns a flag, I would like to know what proposition the punk is expressing.

The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level. To have reasoned or even unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are. I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.

The only reasonable objection to Vallicella’s position is that a government which can outlaw flag-burning or finger-flipping can outlaw any form of expression. The objection is a slippery-slope argument: allow X (suppression of certain forms of expression) and Y (suppression of any kind of expression, at the whim of government) is sure to follow.

What has happened, in fact, is the opposite: Forms of expression (i.e., speech and symbolic acts) that had been outlawed have been made legal by the U.S. Supreme Court. Examples are the showing of films that the authorities of a State considered obscene, the utterance or publication of statements advocating the overthrow of government, and flag-burning. The Court has developed something like an absolute position regarding freedom of speech — or, more accurately, freedom of expression.

For example, only where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.

And therein lies the dangerous folly of free-speech absolutism. 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. Lowenthal’s case is summarized in Edward J. Erler’s review of the book (“The First Amendment and the Theology of Republican Government,” Interpretation, Spring 2000):

The thesis of David Lowenthal’s [book] is as bold as it is simple: “the First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction” (p. xiv). Lowenthal rightly argues that the First Amendment was adopted for a political purpose; it sought to protect only those liberties necessary for the preservation of republican government. Today, however, the focus of the First Amendment is on “individual rights” rather than the common good, at it is this “over-expansion of individual liberty” that Lowenthal believes has led to the vast decline of the “moral and political health of the republic,” a decline that undermines the very foundations of liberty itself. Indeed, the Supreme Court has “made individual freedom its god — at the expense of the moral, social, and political needs of ordered society” (p. xiv).

Lowenthal argues that this corruption in First Amendment jurisprudence was caused by the deliberate departure from the intentions of its framers: “the great impetus for movement in the direction of extreme liberty came not from within the system but from new philosophies and theories, mostly imported from abroad…. The main culprit here, according to Lowenthal, is John Stuart Mill who, in the hands of Justices Holmes and Brandeis, became the intellectual guide for a “second, hidden founding” (pp. 54, 45, 248, 250, 253, 267, 273). It was Mill who “supplied a new theoretical foundation for liberty, calling for its vast expansion in the name of freedom of thought,” and by the middle of the twentieth century, those forces set in motion by modernity, “relativism and subjectivism,” had become the dominant mode of thought informing constitutional interpretation (p. 267). Mill and his epigones replaced the founders as the source for understanding the Constitution.

The efforts of Holmes and Brandeis, of course, were part of the larger Progressive movement. The explicit goal of Progressivism was to free the Constitution from its moorings of the founding, most particularly from the “static” doctrines of the Declaration of Independence and its reliance on the permanent truths of the “laws of nature and nature’s God.” Progressivism itself was only one strain of modernity, but it shared with the other strains the depreciation of both reason and revelation as sources of moral and political authority. Progressivism was phenomenally successful in it debunking of the founding and its reformist zeal appealed wholly to the passions. It sought to liberate the passions from the constraints of morality, whereas the founders appealed to the “reason … of the public” (The Federalist, No. 49 [Rossiter, ed.] p. 317) as the foundation of moral and political order. The appeal to reason will always be more difficult than the appeal to passion, especially when the appeal to passion has itself assumed a kind of “moral” authority. It should not be surprising therefore that the success of the “Holmes-Brandeis school of jurisprudence,” in Lowenthal’s estimation, “is wholly out of keeping with its intrinsic merits” (p. 61).

Progressivism was a wholly alien doctrine; it derived not from any thought of the founding, but from Continental thought, principally of Hegel. The result was moral relativism verging on nihilism. But Lowenthal rightly questions “whether any alien doctrines, any doctrines other than those of the founders and framers, written into the language of the Constitution, should be so employed” (p. 54). Lowenthal supports original intent jurisprudence because the ideas of the framers and founders “remain constitutionally, politically, and morally superior to those that have displaced them” (p. xxii). Lowenthal does not minimize the difficulty of restoring the founding to its rightful place; he believe the republic is in grave danger and the danger is more than abundantly evident in the current understanding of the First Amendment. Lowenthal’s account is not that of a mere intellectual; it is written with a verve, moral passion, and deep understanding that is almost unknown among intellectuals.

The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty. The Court has been so busy protecting the right of the media to subvert the national defense, that it hasn’t spared the time to extend its free-speech absolutism by striking down speech codes at taxpayer-funded universities. That’s perverse because, among many things, speech codes are intended to suppress the very kind of political dissent that the First Amendment was meant to protect. It isn’t protected because it’s conservative dissent from “liberal” orthodoxy.

ENTER THE AMORPHOUS HARM PRINCIPLE

One aspect of that orthodoxy, which Lowenthal addresses, is John Stuart Mill’s harm principle:

[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [John Stuart Mill, On Liberty (1869), Chapter I, paragraph 9.]

This is empty rhetoric. Theodore Dalrymple exposes its emptiness in “The Simple Truth about J.S. Mill’s Simple Truth” (Library of Law and Liberty, July 20, 2015). Dalrymple writes about the legalization of drugs, but his indictment of the harm principle is general:

I can do as I please, and take what I like, so long as I harm no others.

One can easily sympathize with this attempt to delimit the relations between the individual and the state or other powerful authorities. Every government today is in practice vastly more oppressive than that of George III in the American colonies. Which of us does not feel an increasing weight on him of regulation, prohibition, and compulsion from on high—most of it nowadays supposedly for our own good—to help us lead a better or a longer life whether we want it or not? How are we to hold back the flood of official intrusion into our lives without a principle to distinguish legitimate from illegitimate intrusion?…

The objections to the Millian premise of the call to drug legalization are well-known. Man is a social as well as a political animal, and except for the very few who live in genuine isolation, almost all that we do affects someone else….

We may, indeed we ought to, have a bias or presumption in favor of individual liberty, and we should also have a lively appreciation of the fact that interference with liberty to prevent harm to others may actually cause more harm than it prevents. Moreover, because liberty is a good in itself, loss of liberty is a harm in itself, always to be taken into account.

None of this means that there is a very clear principle that can lay down in advance the limits of liberty, such as Mill wants (and the would-be legalizers of drugs rely upon)….

The libertarian position with regard to drugs would be more convincing if the costs of the choices of those who took them could be brought home to them alone. We know that, in practice, they are shared….

In short, there is no “very simple principle” of the kind that Mill enunciated, with an eloquence that disguised a certain hollowness, that establishes as inherently wrong the forbidding of citizens to take whatever drugs they like. By the same token, there is no very simple principle that will determine which drugs should be permitted and which banned.

If it is right to begin permitting the consumption of a heretofore banned drug, it must, therefore, be on other grounds than that “the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection.” As Einstein said, a theory should be as simple as possible, but not simpler than possible.

(See also: “Toleration Extremism: Notes on John Stuart Mill“, Maverick Philosopher, January 14, 2015.)

THE SUBVERSION OF SOCIAL NORMS IS THE SUBVERSION OF LIBERTY

Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.

Drugs are taken for the treatment of actual illnesses, not for recreational purposes.

Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities.

Sexism (though it isn’t called that) is nothing more than the understanding — shared by men and women — that women are members of a different sex (the only different one); are usually weaker than men; are endowed with different brain chemistry and physical skills than men (still a fact); and enjoy discreet admiration (flirting) if they’re passably good-looking, or better. Women who reject those propositions — and who try to enforce modes of behavior that assume differently — are embittered and twisted.

Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.

Addiction isn’t a disease; it’s a surmountable failing.

Justice is for victims. Victims are persons to whom actual harm has been done by way of fraud, theft, bodily harm, murder, and suchlike. A person with a serious disease or handicap isn’t a victim, nor is a person with a drinking or drug problem.

Peace is the result of preparedness for war; lack of preparedness invites war.

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization. There is among Americans the greatest degree of mutual enmity (dressed up as political polarization) since the Civil War.

The mutual enmity isn’t just political. It’s also racial, and it shows up as crime. Heather Mac Donald says “Yes, the Ferguson Effect Is Real,” and Paul Mirengoff shows that “Violent Crime Jumped in 2015.” I got to the root of the problem in “Crime Revisited,” to which I’ve added “Amen to That” and “Double Amen.” What is the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration (see “Crime Revisited”).

The Ferguson Effect is a good example of where the slippery slope of free-speech absolutism leads. More examples are found in the violent protests in the wake of Donald Trump’s electoral victory. The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.

THE REVERSE SLIPPERY-SLOPE

Justice Kennedy’s egregious majority opinion in Obergefell v.Hodges lays the groundwork for more suppression. This is from Chief Justice Roberts’s dissent (references omitted):

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion.Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Justice Alito, in his dissent, foresees that the majority opinion

will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

I expect Roberts and Alito to be proved right unless the election of Donald Trump soon results in a conservative majority on the Court, that is, the replacement of Kennedy or one of his allies in Obergefell v. Hodges.

A WAR BY ANY OTHER NAME

What I have just described is a key component of the left’s continuing and relentless effort to reshape the world to its liking. Leftists don’t care about the licentious consequences of free-speech absolutism because they’re insulated from those consequences (or so they believe). Their motto should be “I’m all right, Jack.”

But leftists do care about making government big and all-powerful, so that it can enact the programs and policies they favor. To that end, leftists seek to suppress political dissent and to subvert voluntary cooperative behavior, which is found not only in evolved social norms but also in free markets. The people must be brought to heel at the command of big brother, who knows best.

It is war, in other words, and more than a culture war. It’s a war between the enemies of liberty and those who want liberty, not license. The problem is that too many of those who want liberty don’t know that there is a war. For one thing, those who want liberty aren’t necessarily self-described libertarians; rather, they’re traditional conservatives (Burkean libertarians) who, by nature, are attuned to beneficial cooperation, not ideological conflict. For another thing, many of those who want liberty have been brainwashed into believing that leftists also want liberty but are misguided about how to attain it.

It may be too late to pull victory from the jaws of defeat. But while there is still freedom to challenge the enemies of liberty there is still hope for the restoration of constitutional governance.

I would return to first principles. The United States was reconstituted in 1788 when the Constitution was ratified. As stated in the preamble to the Constitution, one of the purposes for reconstituting the nation was to “secure the Blessings of Liberty to ourselves and our Posterity.”

Why, then, should the government of the United States tolerate the promulgation of anti-libertarian views? It is evident that in practice the free-speech slippery slope really leads away from liberty not toward it. I’m referring not just to riotous, licentious behavior that flouts civilizing norms and undermines them. I’m also referring to something much deeper and more subversive than that: the toleration of speech that has turned the Constitution on its head by converting the central government from a miserly, non-interfering night watchman to a partisan, micro-managing nanny with deep pockets into which almost everyone is allowed to dip.

This means, at a minimum, and end to free-speech absolutism, which has become a license for two-percent tyranny and the destruction of civilizing social norms. It also means taking a hard line with respect to advocates of big, intrusive government. It will be a cold day in hell before there is a president and a Congress and a Supreme Court who consistently and concertedly take a hard line — and carry it into action. Donald Trump is preferable to Hillary Clinton, but he is a far cry from Ronald Reagan, let alone Calvin Coolidge (my favorite president). The Republican majorities in Congress are infested with special pleaders who will log-roll until the cows come home. The Supreme Court will continue to be the Kennedy Court until Trump is able to replace Kennedy or one of the leftists with whom he allies increasingly often — assuming that Trump will stay true to his word about the conservative character of his nominees.

In sum, there’s no prospect of quick or certain victory in the war to restore constitutional governance to Washington and liberty to the land.

THE LONG WAR AHEAD

Conservatives must be prepared for and committed to a long war, with the aim of changing the character of the institutions that — in addition to family — hold the most sway over the minds of future leaders and the voters who will select those leaders: public schools, universities, and the media.

The long war will be a war to transform fundamentally the prevailing ethos of a nation that has sunk gradually into decadence and despotism. (Barack Obama’s “fundamental transformation” was nothing more than the proverbial frosting on the proverbial cake.) How does one even begin to wage such a war?

I would begin by following a key maxim of war-fighting: concentration of force. Roll up one enemy unit at a time instead of attacking on a broad front. As each enemy unit falls, the rest become relatively weaker by having fewer friendly units to call on for support.

Imagine, for example, a conservative takeover of several major universities,* which might be abetted by a concentrated campaign by conservative trustees with the support of friendly forces within the universities, and a few sympathetic media outlets, all backed by a loud and sustained chorus of supportive reporting, commentary, and outright propaganda emanating from the blogosphere. University administrators, as we have seen, are especially sensitive to changes in the prevailing direction of opinion, especially if that opinion is fomented within universities. Thus, if one major university were to move sharply in a conservative direction, it would take less effort to move a second one, even less effort to move a third one, and so on.

With universities falling into line, it would be a fairly simple task to remake the face of public education. It is universities, after all, which are mainly responsible for the left-wing indoctrination that most public-school teachers and administrators have been spreading throughout most of the land for many decades. It wouldn’t take a generation for the new, conservative disposition to spread. It would spread almost like wildfire for the same reasons that it would spread rapidly among universities: the desire to be “on the right side of history,” no matter what side it is. It would become more or less permanent, however, as new waves of students leave the universities that have converted to conservatism and begin to spread its gospel in public schools.

The conversion of the media would proceed in parallel with the conversion of public schools. It would be a self-inflicted conversion, born of the desire to please an audience that is becoming more and more conservative. The act of pleasing that audience would, in turn, result in the dissemination of stories with a conservative slant, which would help to speed the conversion of the as-yet unconverted members of the audience.

As for how to arrange a conservative takeover of a major university, I would begin with those few that have shown themselves ripe for conversion. Perhaps it’s one of the 27 universities that is a rated a “green-light institution” by the Foundation for Individual Rights in Education (FIRE). The University of Chicago is a recent and prominent addition to that list.

Wherever the campaign begins, it should begin with a university whose trustees, sources of income, faculty, and current ideological balance make it ready to be pushed into the ranks of conservative institutions. Perhaps it would be a matter of electing a few more conservative trustees, with the help of a major donation from a conservative source. Perhaps a key department could be moved to the conservative side of the ledger by the hiring of a few faculty members. Perhaps the university needs only a slight push to become a leader in the refutation of speech codes, “safe spaces,” “trigger warnings,” and in the open embrace of conservative speakers and movements.

The devil is in the details, and I’m not conversant enough with the state of any university to suggest how or where to begin the campaign. But begin it must — and soon, before it’s too late to reverse the incoming tide of leftist regimentation of all aspects of our lives.
__________
* A takeover is better than a startup. A takeover not only means that there’s one less “enemy” to fight, but it also means that some “enemy” forces have been converted to friendly ones, which sets a precedent for more takeovers. Fox News Channel is a case in point. Its creation didn’t reduce the number of left-wing outlets. And the growth of FNC’s market share at the expense of left-wing outlets (mainly CNN) merely tapped into a ready market for a somewhat conservative outlet; it didn’t create that market. Further, FNC isn’t “serious” in the way that a university is, and so its slant is more easily dismissed as propaganda than would be the emanations from a major university.

A Resolution of Secession

Posted on August 18, 2016 by Loquitur Veritatem

See “The Constitution: Myths and Realities“.

The Answer to Judicial Supremacy

Posted on March 25, 2016 by Loquitur Veritatem

This long post, which seems to violate my resolve to avoid long posts, was almost complete when I began my blogging hiatus in August 2015. I took a bit of time today to finish it.

INTRODUCTION

I begin with the supposed similarity of Kim Davis’s refusal to issue same-sex “marriage” licenses and George Wallace’s anti-integration “stand in the schoolhouse door.” The similarity, some would say, is that both acts of defiance against rulings of the Supreme Court were acts intended to deny “equal protection of the laws” to certain groups (namely, homosexuals and blacks). But “equal protection” has too often been the Court’s tool for imposing on Americans the social preferences of its members (or a majority of them). The Court hasn’t just used its constitutional power to resolve “cases and controversies”; it has assumed law-making power. That power arises from “judicial supremacy,” which was conceived in Marbury v. Madison (1803) and attained maturity in Cooper v. Aaron (1958). Judicial supremacy is unconstitutional. Secession is a legal (constitutional) remedy for judicial supremacy — and much else that is rotten in the state of the union.

HOW ARE THESE THINGS THE SAME?

“What is the difference,” Timothy Sandefur asks rhetorically, between a county clerk in Kentucky defying the Supreme Court by refusing to issue marriage licenses to same-sex couples and George Wallace defying the Supreme Court by refusing to integrate the public schools of Alabama?

I take this as Sandefur’s point: There is no difference. In both instances, government officials defied the “law of the land” and denied “equal protection of the laws” to members of an “identity group” because of their membership in that group.

There is another similarity, which is omitted from Sandefur’s liberaltarian view of such acts of defiance. In both the segregation and same-sex “marriage” cases, the “law of the land” was peremptorily established by the Supreme Court, not by the passage of bills duly signed into law by the president of the United States or a governor of a State.

JEFFERSON’S PREMONITION

This raises the issue of judicial supremacy: the supposed power of the Supreme Court to enforce the Constitution for the other branches of the central government and the States. The truth of the matter was expressed more than 200 years ago, in a letter from Thomas Jefferson to Abigail Adams:

You seem to think it devolved on the judges to decide the constitutionality of the sedition law [the Alien and Sedition Acts, which Jefferson opposed] . But nothing in the Constitution has given them the right to decide for the Executive, more than the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power was placed in their hands by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make of the judiciary a despotic branch. [Quoted by Michael and Luke Paulsen in The Constitution: An Introduction, p. 136.]

(Jefferson was right to fear judicial despotism.)

Jefferson went further and proclaimed that the States, as the parties to the constitutional “compact” (his word), were the supreme arbiters of the Constitution. James Madison — father of the Constitution — sided with Jefferson at the time (though he back-tracked later in his life).

Michael Stokes Paulsen and Luke Paulsen, while characterizing Jefferson and Madison’s assertion of State supremacy as “inconsistent with the Constitution’s design,” say this:

Madison and Jefferson were right that state authorities have the right and duty to resist unconstitutional actions of the national government. Thus, the proper answer is that state government actors are legitimate constitutional interpreters, but not supreme ones. State officials, no less than federal officials, swear an oath to support the Constitution. And the structure of federalism, as we have seen in Chapter 2, makes states and state officials independent checks on the national government. It is therefore not at all outlandish to think that officers and instrumentalities of state governments possess an independent power of faithful constitutional interpretation— the power to interpret the Constitution (to borrow President Jackson’s words on a later occasion) as they understand it, “not as it is understood by others.” As demonstrated by Virginia’s and Kentucky’s resistance to the Alien and Sedition Acts, that power sometimes can be a valuable check on unconstitutional action by the national government.

But there is an important constitutional limit to this independent state interpretive power— a boundary that Madison defined inconsistently, that Jefferson disregarded entirely, and that (as we shall see) nullification and secession would attempt to breach violently: independent state power to interpret the Constitution does not mean state supremacy over the Constitution. No state, group of states, or state actor within them has the power to interpret the US Constitution in a way that binds the nation as a whole. Just as states are not literally “bound” by the federal government’s interpretations of the document, the federal government cannot be controlled in its actions by the interpretations of the state. The two levels of government operate as checks on each other, just as the several branches of the national government check one another. [Op. cit., pp. 135-136.]

I am satisfied by the Paulsens’ formulation. It should go without saying that a single State or group of them cannot dictate to all States. But it should also go without saying that the Supreme Court’s power is limited to deciding particular “cases and controversies” (Constitution, Article III, Clause 1), not to making law.

JUDICIAL LAW-MAKING AND THE “EQUAL PROTECTION” RACKET

But making law is precisely what the Supreme Court does when its members (or a majority of them) torture the Constitution to suit their political aims. And that’s what happened in Brown v. Board of Education and Obergefell v. Hodges.

Brown wasn’t decided on the basis of the Constitution, but by deference to Kenneth and Mamie Clark‘s phony “doll experiments.” This was clearly a stretch to justify the Court’s emotional disdain for Southern segregation. As Justice Clarence Thomas later put it:

Brown I [the name later applied to Brown v. Board of Education] did not say that “racially isolated” schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race…. At the heart of this interpretation of the Equal Protection Clause lies the principle that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups. [Missouri v. Jenkins, 1995]

Separateness — voluntary economic and social segregation — is an inexorable force. Most of the segregation that existed in the nation, North and South, was voluntary and based on socioeconomic differences between the races. (Witness the gradual resegregation of public schools since the hay-day of the “Civil Rights Era” in the 1960s and 1970s.) It follows that Court-ordered integration (like State-ordered segregation) couldn’t be implemented without infringing on freedom of association, a right implicitly recognized by the Ninth Amendment. But infringement on freedom of association — along with violence and heightened racial animosity — predictably followed Brown. Brown III, for example, resulted in tests of “racial balance” (i.e. quotas). Brown also set the stage for the revocation of property rights ten years later, in the name of “public accommodations.”

The majority in Obergefell likewise relied on “equal protection.” But there the resemblance ends, pace Sandefur. The form of segregation targeted specifically by the Brown Court was government-enforced and thus also a denial of freedom of association, if not “equal protection.” The form of marriage targeted specifically by the Obergefell majority was a traditional religious and civil relationship that has been commandeered by government. Its heterosexual character was natural, not discriminatory, having arisen and endured because of the stabilizing social value of heterosexual attachments and the familial bonds that accompany them.

The Court’s resort to “equal protection” in Obergefell (and elsewhere) is a sham:

By the “logic” of [proponents of the legalization of same-sex “marriage”], it is unconstitutional to discriminate on any basis. Thus no one should be found unfit for a particular job (that saves Carpenter and Walker); no one should be found unfit for admission to a university; there should be no minimum age at which one is permitted to drink, drive, wed, or join the armed forces; there should be no prohibition of marriage between siblings; churches should be required to ordain atheists; and on and on.

Above all — by the same “logic” — the laws should not have any basis in morality. Because the imposition of morality results in “discrimination” against persons who cheat, beat, steal from, rape, and murder other persons. [“Getting ‘Equal Protection’ Right,” Politics & Prosperity, November 23, 2014]

THE MYTH OF “JUDICIAL SUPREMACY”

In any event, Brown and Obergefell are among the hundreds of cases in which the Supreme Court has made law, unconstitutionally. I say that will all due respect for Chief Justice John Marshall, who asserted that

[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each…. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure….

The judicial power of the United States is extended to all cases arising under the constitution…. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?…

[I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: ‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.’

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. [Marbury v. Madison, 1803]

Marshall’s one-sided analysis omits the very real possibility that the courts will err (deliberately or not) in their interpretation of the Constitution.

Marbury led eventually to Cooper v. Aaron (1958), in which a unanimous Court

held that since the Supremacy Clause of Article VI made the US Constitution the supreme law of the land and Marbury v. Madison made the Supreme Court the final interpreter of the Constitution….

This is rather like a batter presuming to call balls and strikes for himself.

THE MYTH EXPOSED

But Marbury did not make the Supreme Court the final arbiter of the Constitution. I return to the Paulsens:

The Constitution’s words and structure do not set up one single, authoritative interpreter of the Constitution— contrary to the myth that has grown up around the often misunderstood case of Marbury v. Madison. The Constitution does not establish judicial supremacy, but constitutional supremacy: the supremacy of the document itself. And the Constitution’s system of separation of powers and even federalism set up a framework in which multiple actors— presidents, legislators, juries, and voters, as well as judges— each have a legitimate role to play in giving the Constitution practical effect and in checking the errors of the others. No one branch or institution has the sole power of constitutional interpretation. The Supreme Court did not write the Constitution, does not own the Constitution, and has not always correctly interpreted the Constitution. Our constitutional system has worked best when each and every government official and citizen has taken a full, active, faithful role in interpreting the Constitution. [Op. cit., pp. 320-322]

That is only the conclusion of a long, compelling analysis. I urge you to read it for yourself. Though you will be forgiven if you disagree with the Paulsens’ nationalistic view of the Constitution. I disagree with it, vehemently. (See this post, for example.)

NO WAY OUT?

The problem is that Congress — even when its majorities oppose the Court’s decisions — has failed to use (or to use often enough) the constitutional tools at its disposal: impeachment, jurisdiction-stripping, and outright defiance. Alexander Hamilton was unduly optimistic (or just trying to sell nationalization of the States) when he wrote this:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances (if it was that) is an example of what I have called 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. [“Liberty and Federalism,” Liberty Corner, March 12, 2006]

THE CONSTITUTION AS A USEFUL TOOL

It is no wonder that I have come to view the Constitution cynically:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it….

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

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

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

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

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

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

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof. [“How Libertarians Ought to Think About the Constitution,” Politics and Prosperity, February 22, 2014]

There is, in sum, a strong legal case for secession, pace the Paulsens, who (strangely) view the Civil War — a war mind you — as legally dispositive. I have spelled out the legal case for secession (and the legal irrelevance of the Civil War) in several posts at Politics & Prosperity, including “Secession” (April 17, 2009), “Secession Redux” (July 2, 2009), “A Declaration of Independence” (March 30, 2010), and “The States and the Constitution” (September 6, 2014). I recommend that you read all of the posts (and the ones linked to within them), but if you don’t have the time to do that, consider this passage from “The States and the Constitution”:

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification, Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves….

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act…. [underlining added]

As each State was free to ratify the Constitution (or not), so is each State legally free to withdraw its ratification, that is, to secede.

THE ONLY WAY OUT

When all is said and done, the only escape from the judicial tyranny that has arisen under the Constitution is to withdraw from the union it represents. Though an act of secession cannot represent the will of all the people of a State, it would almost certainly represent the wishes of a vast majority of the people of the seceding State. Given the impossibility of unanimous consent, I would gladly side with the pro-liberty secessionist forces of my State. The alternative is to march in lockstep to the incessant drumbeat that measures America’s descent into “soft” despotism.

See “The Constitution: Myths and Realities“.

A Colloquy on the Constitution

Posted on March 11, 2016 by Loquitur Veritatem

Q: What is the provenance of the Constitution of the United States of America?

A. In its original form, it was an agreement among the States (i.e., governing bodies of certain geographical areas formerly known as colonies). Each State that ratified (agreed to) the Constitution did so because a majority (however slight) of a small fraction of the State’s residents voted to approve the Constitution.

Q. So the Constitution is binding on all Americans because of the actions of a small fraction of the residents of America in 1787-1790?

A. Approximately. It’s really binding on all Americans because the governments of the States and the central government have the power to make it binding. More importantly those governments have the power enforce statutes, regulations, and judicial decrees, whether or not they actually conform to the Constitutions of the United States or any State. However, there was a time when certain groups of people, known as Indians, were treated as if their tribes and nations weren’t subject to the jurisdiction of American governments, Rather, they were treated as if they were foreign nations, even though their territories were within the boundaries of the United States. Accordingly, they weren’t even taxed by American governments.

Q. So allegiance to the Constitution, etc., is discretionary?

A. Yes, but it’s governmental discretion, not the choice of individuals or groups.

Q. Yet the preamble to the Constitution says that it was established by “the People.”

A. Yes, a few of them.

Q. If that’s the case, why do so many people seem to respect the Constitution and invoke it?

A. Most people who claim to respect the Constitution do so because (a) it’s a symbol of Americanism (whatever that is, these days), or (b) it can be read in a way that supports their political views and preferences. The reading can be literal, which is the way written constitutions are meant to be read, or strained, in which case it involves a “living Constitution” (i.e, make it up as you go along) with “emanations” and “penumbras” (i.e., inferences piled on unsubstantiated interpretations). The Constitution, in brief, is a kind of club to be carried into political battles.

Q. To sum it up: The Constitution is binding because of the power of government to make it binding. But government uses it mainly as an excuse to enforce the wishes of those who control government, regardless of what the Constitution actually says.

A. That’s about it.

Q. Well, then, truth in packaging demands a more accurate preamble. Here it is:

We the minuscule minority who lived a long time ago hereby ratify this document so that a bunch of politicians, bureaucrats, and judges can mention it when they jerk you around and pick your pockets — Indians excluded.

A. Almost. But Indians are no longer excluded, in reality, regardless of the treaties they co-signed with the big chiefs in Washington, D.C.

Q. Spreading the misery is the American way.

Democracy, Human Nature, and America’s Future

Posted on April 9, 2015 by Loquitur Veritatem

Like many (most?) persons of a libertarian stripe, I see democracy as an enemy of liberty. Democracy is popularly thought of as

a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

There are two things wrong with this view. First, the “supreme power” isn’t just exercised by elected agents but, with their blessing, it is exercised mainly by unelected agents: judges, law-enforcement personnel, regulators of myriad economic activities at all levels of government, and on and on. Many of these appointed functionaries write the very rules that they and others enforce — rules that often are barely recognizable as deriving from ordinances and statutes enacted by elected agents.

In sum, what is called democracy in America can reasonably be called fascism, in the proper meaning of the word. It isn’t called that mainly because neither “the people” nor the elite purveyors of fascism are willing to face facts. And then there are the many (far too many) Americans who don’t seem to object to an intrusive state.

Here’s the second problem with the popular view of democracy: It implies that a majority of voters — or a majority of their elected agents — should have unlimited power to meddle in everyone’s personal and business affairs. The implication has become fact, with the sweeping aside of constitutional checks on the powers of the legislative and executive branches, with the connivance of the judicial branch. The elected agents of “the people” — and those agents’ appointed functionaries — have acquired unlimited power by pandering to “the people,” by appealing to their envy, greed, and deluded faith in central planning.

What all of this illustrates is something that was obvious to the Framers of the Constitution: Even if there were (or could be) such a thing as political equality, democracy is dangerous because it can’t be constrained. Why would anyone expect “the people” or their elected representatives or their appointed functionaries to limit the power of the state to the defense of citizens? “The people” believe — wrongly, in most cases — that the state’s unlimited power makes them better off. In fact, the true beneficiaries of the state’s power are elected officials, appointed functionaries, and their pseudo-capitalist cronies.

True believers will retort that the problem isn’t with democracy, it’s with the way that democracy has been put into practice. They are indulging in the nirvana fallacy, the tendency to believe in “more perfect” systems that can somehow be attained despite human nature. In short, true believers substitute “ought to be” (in their view) for “what can be.”

They are no different than the true believers in socialism, who maintain — despite all evidence to the contrary — that “true socialism” is possible but hasn’t yet been put into practice. It would be possible only if socialism (like democracy) didn’t involve human beings. No system that involves human beings can rise above the tendencies of human nature, among which, as noted above, are envy and greed.

Then, there is power-lust. This may be less prevalent than envy and greed, but it is more dangerous because it exploits envy and greed, and amplifies their effects. Almost no politician, regardless of his rhetoric, is driven by a pure desire to “do good”; he is almost certainly driven by a desire to use his power to do what he thinks of — or rationalizes — as “good.”

And use his power he will, for he believes that it is his right and duty to make rules for others to obey. This is always done in the name of “good,” but is really done in the service of cronies and constituents who enable the politician to remain in power. In short, the last person to trust with high office is a person who seeks it. That is why elections usually come down to a choice among the lesser of evils.

What is to be done about democracy in America? Nothing like the revocation of near-universal suffrage, of course. The natives (of all hues, creeds, genders, and origins) wouldn’t stand for it. The only viable reform is constitutional, that is, a constant chipping-away at the power of the state.

And how is that to be accomplished, inasmuch as the GOP has proved to be an unreliable ally in the fight against statism? Perhaps the GOP would be less faint-hearted if it were to control the White House and Congress. And perhaps the best thing to come of that control would be the replacement of a Ruth Bader Ginsburg by another Clarence Thomas. (I hold little hope for courageous action on entitlements and regulatory excesses.) But, given the electorate’s fickleness, it wouldn’t be many years before an Antonin Scalia is replaced by a reincarnated William O. Douglas. In sum, I hold little hope that the Supreme Court will rescue liberty from democracy.

It’s also possible that GOP control might result in an Article V convention:

…[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 Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….

But what would be the thrust of any proposed amendments that leap the high hurdle of ratification, “The Constitution says this, and we mean it”? The Constitution already says this, and it’s ignored.

What’s needed is real action, not the mere placement of words on paper. Thus the best (and perhaps only) hope for a permanent withdrawal from the precipice of totalitarianism is de facto secession:

This has begun in a small way, with State-level legalization of marijuana, which has happened in spite of the central government’s de jure power to criminalize it. It is therefore imaginable that GOP control of the White House and Congress would embolden some GOP-controlled States to openly flout federal laws, regulations, and judicial decrees about such matters as same-sex marriage, environmental emissions, and Obamacare — to name a few obvious targets. The result, if it came to pass, would be something like the kind of federalism envisioned by the Framers of the Constitution.

Beyond that, the only hope for liberty seems to lie in drastic (but unlikely) action.

* * *

Related reading:
Hans-Hermann Hoppe, “Natural Elites, Intellectuals, and the State,” Mises Institute, July 31, 2006
Hans-Hermann Hoppe, A Short History of Man: Progress and Decline, Mises Institute, March 5, 2015
Hans von Spakovsky, “Book Review: Mike Lee on the 6 ‘Lost’ Provisions of the Constitution,” The Daily Signal, April 8, 2015
Myron Magnet, “The Dead Constitution,” City Journal, April 10, 2015

Politics and Prosperity

“Government is a disease masquerading as its own cure.”

Tag Archives: Constitution

A Congress of Unlimited Power?

Preamble

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

How Conservatives Should Think about the Constitution

Liberty: Constitutional Obligations and the Role of Religion

The Constitution vs. Reality

Nullification and Secession

New Pages

Not-So-Random Thoughts (XXII)

Constitution: Myths and Realities

Freedom of Speech: Getting It Right

The Constitution: Myths and Realities

The Framers, Mob Rule, and a Fatal Error

Restoring the Contract Clause

Another (Big) Problem with “Nudging”

Lincoln Was Wrong

A Nation of Immigrants, a Nation of Enemies

Freedom of Speech and the Long War for Constitutional Governance

A Resolution of Secession

The Answer to Judicial Supremacy

A Colloquy on the Constitution

Democracy, Human Nature, and America’s Future

Preamble

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

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