Tag: Constitution

The Census of 2010: Bring It On

I’m waiting eagerly for the census form to arrive in the mail. Its arrival will give me an opportunity to comply with the “real” Constitution by committing an act of civil disobedience. Specifically, I will refuse to answer the questions that have nothing to do with the constitutional purpose of the census.

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

In fact,  nine of the questions asked on this year’s ten-question census form are  extraneous to the constitutional purpose of determining the number of persons living in each State. It is telling that the “box” in which the constitutional purpose of the census is stated contains only question 1: “How many people were living or staying in this house, apartment, or mobile home on April 1, 2010?” The layout of the form indicates clearly that the other nine questions are unnecessary, not to mention intrusive; for example: Do you own or rent your home? Is it mortgaged? What’s your phone number, age, and date of birth? Are you Hispanic? What’s your race (since the abolition of slavery, relevant only to the exclusion of “Indians not taxed” from the enumeration)? Do you sometimes live or stay somewhere else, and why?

Worse than the basic census form is the American Community Survey (ACS), which is sent to a random sample of addresses. The survey redoubles the constitutional irrelevance and unwarranted intrusiveness of the basic census form by asking about such things as the characteristics of your dwelling (e.g., number of rooms, number of bathrooms, age of building, types of appliances), number of automobiles you own, cost and type of utilities you use, the estimated value of your home, your annual real-estate taxes, the amount of mortgage payment, your education, your type of employment and work status, etc., etc., etc.

According to the Census Bureau,

The 2010 Census will help communities receive more than $400 billion in federal funds each year for things like:

  • Hospitals
  • Job training centers
  • Schools
  • Senior centers
  • Bridges, tunnels and other-public works projects
  • Emergency services

The data collected by the census also help determine the number of seats your state has in the U.S. House of Representatives.

It is noteworthy that the constitutional purpose of the census is stated as an afterthought, whereas top billing is given to several unconstitutional purposes — none of which derives from the powers granted Congress in Article I, Section 8, of the Constitution. The fact that courts have upheld the constitutionality of extraneous, intrusive questions is no proof of their constitutionality. The real Constitution is what the Constitution says, not what some court says.

Nor is there a scintilla of a penumbra of a justification in the Constitution for the use of the census to satisfy the desire of social “scientists” to collect data from which they can derive unconstitutional policy prescriptions..Yet, the Census Bureau boldly proclaims the value of the census as a source of data for such endeavors by quoting one such “scientist”:

“For many sociologists and other scholars like me, the census data that is compiled every 10 years is flat-out the most reliable, comprehensive, and best source of data on the American population.”

— C.N. Le, Professor at University of Massachusetts, Amherst

In addition to the essential unconstitutionality of the census, as it is conducted, there is the potential for the misuse of the census by an administration that is determined to micromanage our lives, as the present administration is wont to do. (A primary case in point: “health care reform.”)

As if that weren’t enough, Hans A. von Spakovsky notes that a court in Delaware has ruled that “there is a separate violation for each question you don’t answer. So, on this year’s ten-question Census form, you could be fined as much $1,000” — even though it is evident that the law (U.S. Code, Title 13, Section 221) contemplates a maximum fine of $100:

(a) Whoever, being over eighteen years of age refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.

The operative phrase is “any of the questions,” meaning any or all of them. Otherwise, the phrase would read “a question.” But arrogant, statist judges — like arrogant, statist executives and legislators — have no respect for the Constitution or laws that threaten to curb their power-lust.

Nevertheless, as von Spakovsky observes,

If there was a mass refusal by millions of Americans to answer parts of the form — like the race question — the U.S. Justice Department would not have the resources to prosecute everyone who violated the law. But you could be prosecuted and fined . . . .

What’s a Constitution-abiding citizen to do? Aside from giving false answers, which is neither principled nor wise (the potential penalty is five times greater than the penalty for not answering), I see three options:

1. Don’t return the census form(s) and avoid the census-taker when he comes a-calling. If the census-taker happens to catch you at home, you can put him off by recording his ID and telling him to return at some future time, after you have had a chance to call the Regional Census Center to confirm his identity. (If the census-taker gives you a phone number to call, explain to him that it would be imprudent of you to rely on him to give you a valid number.) It might just happen that you forget to be home at the agreed time, or that you don’t hear the doorbell.

2. Answer question 1 and its equivalent on the ACS (if you receive it), and return the form(s). Respond to follow-up visits by the census taker as suggested in 1.

3. Answer question 1 and its equivalent on the ACS (if you receive it), and return the form(s) with an note explaining the constitutional basis for your refusal to answer the other questions. Undaunted, the census-taker will come a-calling, and you (equally undaunted) can deal with him as suggested above. Don’t argue; just avoid.

In the census of 2000, I received the long census form (the predecessor of the ACS), and chose to exercise option 3. The census-taker gave up, and I never heard from a prosecutor. I can’t guarantee the same outcome (for you or me) this time around. But I intend, once again, to resist the unconstitutional intrusion of Big Brother’s minions into my life. I urge you to join me in sending this message to Washington:

Get out of my home and out of my life!

UPDATE (05/10/10):

See this, this, and this for more about Census 2010.

The Real Constitution and Civil Disobedience

INTRODUCTION

I have no doubt that there is a “real” Constitution. Randy Barnett makes a good case for it:

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because it is in writing there is an external “there” there by which to assess its opinions.

It is equally indubitable that the United States has become a nation of unconstitutional laws — a vast number and variety of them. For proof, if proof you need, peruse the United States Code, the Code of Federal Regulations (which includes presidential Executive Orders), and the statutes and regulations of the States (accessible through State and Local Government on the Net).

Which brings me to civil disobedience:

the active refusal to obey certain laws, demands and commands of a government, or of an occupying power, without resorting to physical violence.

It is entirely reasonable to think of America’s present governments — federal, State, and local — as occupying powers. We might just as well have been invaded by a foreign power that chose to abide by our electoral rules, then substituted its own laws for what, until then, had been America’s more-or-less constitutional ones.

LEGITIMATE VS. ILLEGITIMATE LAWS

As a result of the de facto seizure of America’s governments by forces aligned against the Constitution, Americans and the American economy are weighed down with tens of thousands of intrusive, arbitrary, and wasteful laws and regulations. Every aspect of our lives is touched, directly or indirectly, by those laws and regulations.

Some laws and regulations are legitimate, in that they are consistent with liberty:

Whether a particular regulation is consistent with liberty depends on the justification offered on its behalf. Regulations are not inimical to liberty if they coordinate individual conduct as do, for example, traffic regulations mandating driving on one side of the street or the other. They may also be consistent with liberty if they prevent irreparable tortious accidents before they occur, as speed limits do. . . . Although many libertarians object to government ownership of highways, no libertarian objects in principle to a highway owner regulating its use to enhance the speed and safety of driving. Similarly, contract law is a body of rules regulating the making and enforcing of agreements, and libertarians are not opposed to contract law. . . .

A law restricting conduct is consistent with a right to liberty, therefore, if it is prohibiting wrongful acts that violate the rights of others or regulating rightful acts in such a way as to coordinate conduct or prevent the violation of rights that might accidentally occur. A law is inconsistent with liberty if it is either prohibiting rightful acts, or regulating unnecessarily or improperly. A regulation is improper when it imposes an undue burden on rightful conduct, or when its justification is merely a pretext for restricting a liberty of which others disapprove. And one way of identifying a regulation as pretextual is to assess whether the regulatory means it employs do not effectively fit its purported health and safety ends.

Here is how the majority in Lochner distinguished a constitutional exercise of the police power from an unconstitutional restraint on liberty:

In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?

We may conclude from all this that . . . the fact that regulations of liberty have been upheld as constitutional is no evidence that the general constitutional right to liberty does not exist. It may merely be a sign that the government has met its properly-defined burden of proof. (Randy Barnett, “Is the Constitution Libertarian?,” pages 8-9)

The difficulty is that

the Supreme Court has upheld countless federal laws restricting liberty, primarily under the power of Congress “to regulate commerce . . . among the several states” combined with an open-ended reading of the Necessary and Proper Clause. Further it has upheld the power of Congress to spend tax revenue for purposes other than “for carrying into execution” its enumerated powers, thereby exceeding the scope of the Necessary and Proper Clause. . . .

Beginning in the 1930s, the Supreme Court . . . adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. In the 1950s it made this presumption effectively irrebuttable. Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. (op. cit., pp. 15, 17-18)

I consider few governmental restrictions on action as legitimate, that is, “properly regulating rightful acts,” as Barnett puts it. It is legitimate to set and enforce a low speed limit in a school zone, to exact stiff penalties for drunken driving, and to ban the use of a cell phone while driving. But it is questionably legitimate to ticket a capable, sober driver for exceeding the speed limit by 10 miles an hour on a flat stretch of well-maintained, dry interstate highway, in light traffic. And it is grossly illegitimate to enter a judicial decision that forbids a wheat farmer to exceed a federal allotment by growing additional wheat for consumption on his own farm. Indeed, the law that allows the federal government to establish such allotments in the first place is supremely illegitimate — as are all laws that do harm rather than good because they penalize and interfere with acts that are either harmless or actually beneficial.

THE ROAD TO ILLEGITIMACY, AND THE TOLL

Americans have been lulled by what Tocqueville calls “soft despotism.” As I have said,

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

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

How did we get to this point? We got here via the interest-group paradox:

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

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

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

Today, with a century-plus of “progressivism” behind us, more than 40 percent of GDP is controlled directly by government, through taxes and regulations. Those same taxes and regulations, because of their disincentivizing effects, have imposed vastly higher hidden costs on Americans.

And there is more to come, as the demi-gods in Washington seek to repeal the laws of economics by promising more medical care to more persons while discouraging entry into the healing professions and the development of beneficial drugs. On top of that they seek to repeal the laws of physics by further constraining the economy in a fruitless struggle against global warming, which is not a man-made phenomenon.

If you think your liberty (such as it is) has survived (or will survive) those and other economic depredations, think again, for social liberty is indivisible from economic liberty:

There can be no freedom of the press if the instruments of printing are under the control of government, no freedom of assembly if the needed rooms are so controlled, no freedom of movement if the means of transport are a government monopoly, etc. This is the reason why governmental direction of all economic activity, often undertaken in the vain hope of providing more ample means for all purposes, has invariably brought severe restrictions of the ends which the individuals can pursue. (Friedrich A. Hayek, Liberalism, part 16)

A small sample of control, in today’s America, is found in a recent action by the Department of Health and Human Services. HHS prevented government-regulated insurance companies from advising policy holders of the ill effects that Obamacare would have on their insurance coverage. So much for freedom of speech.

More generally, I offer the following thoughts by Walter Lippmann (via Don Boudreaux):

I recalled this wise warning from Walter Lippmann (found on pages 105-106 of Lippmann’s 1937 book The Good Society):

“Though it is disguised by the illusion that a bureaucracy accountable to a majority of voters, and susceptible to the pressure of organized minorities, is not exercising compulsion, it is evident that the more varied and comprehensive the regulation becomes, the more the state becomes a despotic power as against the individual.  For the fragment of control over the government which he exercises through his vote is in no effective sense proportionate to the authority exercised over him by the government.”

THE LEGITIMACY, POSSIBILITY, AND URGENCY OF CIVIL DISOBEDIENCE

The seizure of America’s governments by the lawless occupying powers of “progressivism” not only has cost Americans dearly but also has made us hostages in our own land:

Voice is now so circumscribed by “settled law” that there is a null possibility of restoring Lochner and its ilk. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt.

Under the circumstances, it would be natural — and legitimate — for Americans to resort to massive civil disobedience.

And Americans often do resort to civil disobedience, but mainly in relatively trivial ways (e.g., exceeding speed limits on open highways, under safe conditions). The general reluctance of Americans to commit acts of civil disobedience is unsurprising, given the apparent entanglement of government in our lives and businesses. Unless one chooses a truly self-sufficient life, it is practically impossible to avoid governmental notice of and influence on major events and transactions, for example, births, weddings, employment, the acquisition of life’s essentials (food, clothing, shelter, medical care), and the enjoyment of stimulants, entertainment, and so on.

Accordingly, it is natural for individuals to believe that the heavy hand of government is inescapable. Thus most of us do not try to elude government’s heavy hand, except in relatively trivial ways. And we believe that those who do try to elude it — bootleggers and black marketeers, for example — are often found out and punished. But that impression is due to a kind of reverse survivor bias; that is, we know about the bootleggers and black marketeers who are caught, but we don’t know about the ones who elude official notice.

Imagine an America in which most individuals and businesses routinely commit acts of civil disobedience. Could the various governments in and of the United States possibly detect and punish more than a small fraction of those acts of civil disobedience? The answer, of course, is “no.”

What keeps most individuals and businesses from committing more than trivial acts of civil disobedience is the fear that their particular transgressions will be among the small fraction that is detected and punished. This kind of fear has an especially strong deterrent effect under oppressive regimes that rely on informants and harsh punishments to discourage acts of civil disobedience. The contrast between America and, say, Hitler’s Germany and Stalin’s Russia ought to give heart to Americans. Informants and punishments there are, and always will be, but in American neither of them is on a scale to match the insidious and barbaric regimes of Hitler, Stalin, and their ilk. Not yet, at least.

And in the preceding sentence there is both hope and urgency. Our daily lives are not yet completely dominated by the state. We still have options in many aspects of our lives — even if those options, themselves, are shaped by laws and regulations. Houses and automobiles, for example, must meet thousands of government specifications, but they still are available with a broad array of features, for a broad range of prices.

But how much longer will our illusory freedom last against the onslaught of statism? That is the urgent question, given the prospects at hand for effective government control of the economy through environmental legislation, a complete government takeover of medicine, the punishment of “thought crimes,” the general expansion of paternalistic policies, and on and on.

I leave the enumeration of legitimate acts of civil disobedience as an exercise for the reader. But the time to consider civil disobedience is now, while there is a spark of liberty in the land.

See “The Constitution: Myths and Realities“.

A Hypothetical Question

It is written in the United States Code (Title 18, Part I, Chapter 115, § 2385) that

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

Now, imagine that the governments of the United States and the various States are in the business of creating and enforcing laws that contravene the Constitution of the United States because federal and State executives and legislatures have violated their oaths to uphold the Constitution of the United States. Imagine, further, that successive decisions by the courts of the United States and the various States — decisions which remain in force — have upheld many of the unconstitutional acts of  federal and State executives and legislatures, and generally have created a body of law that contravenes the Constitution.

Given that the first duty of officeholders is to uphold the Constitution, and given that the federal and State governments routinely violate the Constitution, why should it be illegal to suggest the propriety of removing an illicit government and replacing it with one that is dedicated to the defense of the Constitution? Isn’t § 2385 really a kind of job-protection plan for government thugs?

Just asking.

Negative Rights, Social Norms, and the Constitution

In a recent post about negative rights, I quote Randy Barnett, who explains that such “rights that define the space within which people are free to choose how to act.” Well, not quite.

Think about it. A libertarian regime would protect these negative rights:

  • freedom from force and fraud (including the right of self-defense against force)
  • property ownership (including the right of first possession)
  • freedom of contract (including contracting to employ/be employed)
  • freedom of association and movement.

But those rights enclose a cavernous “space,” within which human behavior can find many self-destructive outlets unless it is shaped by social norms — socially evolved rules (as opposed to government-dictated ones) which delineate morally and socially acceptable behavior. Think of the ways in which your present behavior is shaped by the moral lessons of your childhood and by your experiences as a child, student, spouse, parent, friend, co-worker, neighbor, church member, club member, team member, and the like.

In sum, negative rights are meaningless absent a framework of social norms that is consistent with negative rights and which directs behavior along constructive paths. Conversely, constructive social norms are undermined where government fails to protect negative rights or actively denies them. There is, for example, no right of freedom from force in a community where violence is the norm and government is unable to protect residents from violence; there is no right of property ownership in a community where government seizes property as it sees fit to do so; there is no right of freedom of movement for slaves; and so on. (Obviously, I am referring to rights as they are actually enjoyed, not “natural” rights.)

In the United States, the history of negative rights parallels the history of the Constitution:

The original Constitution protected the rights to life, liberty, and property against infringement by the federal government in two ways. First and foremost, Congress was not given a general legislative power but only those legislative powers “herein granted,” referring to those powers enumerated in Article I, section 8. It is striking how these powers avoid expressly restricting the rightful exercise of liberty. The power “to raise and support armies” does not include an express power of conscription, which would interfere with the property one has in one’s own person. The power to establish the post office does not expressly claim a power to make the government post office a monopoly, which would interfere with the freedom of contract of those who wish to contract with a private mail company of the sort founded by Lysander Spooner. (By contrast, the Articles of Confederation did accord the power in Congress to establish a postal monopoly.)…

Two years after its enactment, the Constitution was amended by the Bill of Rights. These ten amendments included several express guarantees of such liberties as the freedom of speech, press, assembly, and the right to keep and bear arms. The Bill of Rights barred takings for public use without just compensation. It provided additional procedural assurances that the laws would be applied accurately and fairly to particular individuals.
All of the rights enumerated in the Bill of Rights are consistent with modern libertarian political philosophy. And to this list of rights was added the Ninth Amendment that said, “The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people.” In this way, even liberty rights that were not listed were given express constitutional protection. Finally, the Tenth Amendment reaffirmed that Congress could exercise only those
powers to which it was delegated “by this Constitution.”…

While the Thirteenth Amendment’s ban on involuntary servitude expanded the Constitution’s protection of individual liberty against abuses by states, it was the Fourteenth Amendment that radically altered the federalism of the original
Constitution. For the first time, Congress and the courts could invalidate any state laws that “abridge[d] the privileges or immunities of citizens of the United States.” The original meaning of “privileges or immunities” included the same natural rights retained by the people to which the Ninth Amendment referred, but also the additional enumerated rights contained in the Bill of Rights. The Due Process Clause of the Fourteenth Amendment placed a federal check on how state laws are applied to particular persons, while the Equal Protection Clause imposed a duty on state executive branches to extend the protection of the law on all persons without
discrimination. (Randy Barnett, “Is the Constitution Libertarian?,” p. 14-17)

However,

the Supreme Court has upheld countless federal laws restricting
liberty, primarily under the power of Congress “to regulate commerce . . . among the several states” combined with an open-ended reading of the Necessary and Proper Clause. Further it has upheld the power of Congress to spend tax revenue for purposes other than “for carrying into execution” its enumerated powers, thereby exceeding the scope of the Necessary and Proper Clause….

Beginning in the 1930s, the Supreme Court . . . adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. In the 1950s it made this presumption effectively irrebuttable. Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. (op. cit., pp. 15, 17-18)

What the law giveth, the law taketh away. The power of the States, individually, to trample negative rights has been supplanted by the far greater power of the central government to trample negative rights.

Generally, negative rights are trampled by every government enactment that does more than protect negative rights.  Which is to say that most government enactments deny negative rights; for example, they

  • compel the surrender of income to government agencies for non-protective purposes (violating freedom from force and property ownership)
  • compel the transfer of income to persons who did not earn the income (violating freedom from force and property ownership)
  • direct how business property may be used, through restrictions on the specifications to which goods must be manufactured (violating property ownership)
  • force the owners of businesses (in non-right-to-work-States) to recognize and bargain with labor unions (violating property rights and freedom of contract)
  • require private businesses to hire certain classes of persons (“protected groups”) and undertake additional expenses for the “accommodation” of handicapped persons (violating property rights and freedom of contract)
  • require private businesses to restrict or ban smoking (violating property rights and freedom of association)
  • mandate attendance at tax-funded schools and the subjects taught in those schools, even where those teachings run counter to the moral values that parents are trying to inculcate (violating freedom from force and freedom of association)
  • limit political speech through restrictions on political contributions and the publication of political advertisements (violating freedom from force and freedom of association).

Such enactments also trample social norms. First, and fundamentally, they convey the message that government, not private social institutions, is the proper locus of moral instruction and interpersonal mediation. Persons who seek special treatment (privileges, a.k.a. positive rights) learn that they can resort to government for “solutions” to their “problems,” which encourages other persons to do the same thing, and so on. In the end — which we have not quite reached — social institutions lose their power to instruct and mediate, and become merely sources of solace and entertainment.

More specifically, government enactments have

  • engendered disrespect for life by authorizing abortion
  • legitimated lewd, lascivious, inconsiderate, and violent behavior in the name of “freedom of expression” and “freedom of speech,” even while distancing children from the moral lessons of religion by declaring freedom from religion where the Constitution only prohibits government establishment of religion
  • undermined the role of the family as a central civilizing force by encouraging the breakup of families (welfare rules, easy divorce)
  • usurped the authority of parents by usurping their authority to instill moral values (as mentioned above)
  • encouraged the absence of mothers from the home through subsidized day-care and “affirmative action”
  • engendered disrespect for constructive economic behavior by rewarding shiftlessness (welfare) and penalizing success (progressive income tax, the “death tax,” etc.)
  • shifted the burden of care for the elderly from families to “society” (i.e., taxpayers) through Social Security, Medicare, and Medicaid, thus teaching the wrong lessons about the value of life and respect for old persons.

I could go on and on, but I hope that I have made my point: Politicians — in their zeal to pander to special interests — have damaged the general interest through their disregard of negative rights and the framework of civilizing norms that transforms negative rights into constructive behavior.

How could this have happened? Here is my explanation:

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 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.

Secession Redux

In “Secession,” I wrote:

The original Constitution contemplates that the government of the United States might have to suppress insurrections and rebellions (see Article I, Section 8), but it nowhere addresses secession. Secession, in and of itself, is not an act of insurrection or rebellion, both of which imply the use of force. Force is not a requirement of secession, which can be accomplished peacefully.

Therefore, given that the Constitution does not require a subscribing State to pledge perpetual membership in the Union, and given that the Constitution does not delegate to the central government a power to suppress secession, the question of secession is one for each State, or the people thereof, to determine, in accordance with the Tenth Amendment. The grounds for secession could be … the abridgment by the United States of the “rights, privileges and immunities”of its citizens.

What about Texas v. White (U.S. Supreme Court, 1868), in which a 5-3 majority anticipated … arguments for a mystical bond of Union; for example:

When … Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

It would have been bad — bad for slaves, bad for the defense of a diminished Union — had the South prevailed in its effort to withdraw from the Union. But the failure of the South’s effort, in the end, was owed to the superior armed forces of the United States, not to the intentions of the Framers of the Constitution.

In any event, the real jurisprudential issue in Texas v. White was not the constitutionality of secession; it was the right of the post-Civil War government of Texas to recover bonds sold by the secessionist government of Texas. Moreover, as Justice Grier noted in his dissent,

Whether [Texas is] a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

The majority’s ruling about the constitutionality of secession can be read as obiter dictum and, therefore, not precedential.

Clifford P. Thies makes a similar case in “Secession Is in Our Future“:

The US law of secession is thought to have been decided by the US Supreme Court in White v. Texas, following the Civil War. The actual matter to be decided was relatively insignificant. The Court used the occasion to issue a very broad decision. Chief Justice Chase, speaking for the Court, said,

The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

…

The first sentence I just quoted invokes words such as “perpetual,” and in so doing may create the impression that the Supreme Court decreed that no [S]tate could ever secede from the Union. But, on careful reading, the relationship between Texas and the other [S]tates of the Union is merely “as indissoluble as the union between the original States.” In other words, Texas, having been a nonoriginal [S]tate, has no greater right of secession than do the original [S]tates. As to how [S]tates might secede, the second sentence says, “through revolution or through consent of the States.”

As to why a [S]tate might secede, … Chief Justice Chase presciently discusses the … 10th Amendment[] to the US Constitution, which reserve[s] to the [S]tates and to the people thereof all powers not expressly granted to the federal government, and that the design of the Union, implicit in the very name “United States,” is the preservation of the [S]tates as well as of the Union:

the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.

In other words, the federal government abrogates the Constitution when it fails to honor Amendment X:

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.

Thies puts it starkly:

The so-called United States of America ceases to exist when the political majority of the country attempts to rule the entire country as a nation instead of as a federal government. In such a circumstance, the “indestructible union of indestructible [S]tates” of which the Court speaks is already dissolved.

I would put it this way: The legal basis for the perpetuation of the United States disappears when the federal government abrogates the Constitution. Given that the federal government has long failed to honor Amendment X, there is a prima facie case that the United States no longer exists as a legal entity. Secession then becomes more than an option for the States: It becomes their duty, both as sovereign entities and as guardians of their citizens’ sovereignty.

See “The Constitution: Myths and Realities“.

A New, New Constitution

I have further revised my revision of the Constitution of the United States (earlier version here). The new, new version is below the fold.

Another blogger once said of such efforts that

[a]ll the Constitution really needs is some well-placed “And we mean it!” clauses:

–The Ninth Amendment…and we mean it!

—Privileges or Immunities…and we mean it!

–Taking property only for public use…and we mean it!

And so on.

Maybe abolish the well-intentioned but subsequently corrupted Necessary & Proper Clause, clarify the meaning of “regulate” in the Commerce Clause to return it to its intended denotation (i.e., “to make regular,” or “to standardize”) and of “commerce” to “that which is not agriculture or manufacturing” (i.e., trade).

The rest is all bells and whistles.

Au contraire: The devil, as they say, is in the details. The main problem with the Constitution is not what it means but what meanings can be imputed to it because of vagueness and ambiguity. What the Constitution really needs is a lot of loophole-closing and more checks on the legislative, executive, and judicial branches, all of which have subverted and twisted the Constitution‘s intended meanings.

“My” (unitalicized) Constitution (as distinguished from the real Constitution, to which deference is owed but too seldom given) is not only far more specific than the original — and more restrictive of the powers of government — but it also includes more checks on those powers. Specifically, there is this provision in Article V:

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

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

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

*    *    *

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

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

To the extent that Articles VII, VIII, and IX would inhibit presidential and congressional ventures into unconstitutional territory, so much the better. Gridlock is good thing when it clogs Washington’s corridors of power.

The new Constitution also provides for secession, the threat of which might further help to preserve its original meaning. Continue reading “A New, New Constitution” →

Toward a Constitutional “Monarchy”

As I happened across The Monarchist (via Occam’s Carbuncle*), I remembered that I hadn’t staked out a place for monarchism in my post, “Parsing Political Philosophy.” I had meant to do so, but had second thoughts.

The place for monarchism is found in what I call radical-right-minarchism (R-R-M),

where “radical” means favoring the restoration of the Constitution to its original meaning. What sets R-R-M apart from other types of [minarchists] is their understanding that it is no longer possible to slay or tame Leviathan through electoral politics-as-usual, that the Constitution itself must be reinvigorated. (There are more radical alternatives, a military coup and secession, neither of which has much chance of success, and both of which could backfire. [Randy] Barnetts’s and my proposals would not, if adopted in the way outlined in the third through fifth paragraphs of Barnett’s article.)

Monarchism would be consistent with my idea of a new constitution, which includes, among many things, an Article VIII, Conventions of the States, which opens with this:

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

Perhaps, instead of unreliable quadrennial conventions, we should have a constitutional “monarch,” to be called (more palatably) “Keeper of the Constitution.” The Keeper’s sole power and duty would be to veto unconstitutional acts of Congress, the executive branch (including “independent” regulatory agencies), and the Supreme Court — as and when such acts occur.

The Keeper, in other words, would be a fourth branch of the federal government — a sorely needed check on the other three branches, which have failed miserably to protect, preserve, and defend the Constitution.

The creation of a Keeper would do much the same thing as the establishment of quadrennial conventions: Push the federal government toward constitutional rectitude with the threat of embarrassing it by very publicly undoing its unconstitutional deeds.

The idea of adding a negatively omnipotent fourth branch raises several tough questions:

  • How should the Keeper be chosen?
  • How long should the Keeper be allowed to serve?
  • What if the Keeper vetoes an act that was in fact constitutional? In other words, who (or what) defends us against an errant or arrogant Keeper?

In answer, I conjure the following constitutional language, beginning with the duties and powers of the Keeper:

1. a. The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies. The term “making law” includes — but is not limited to — a legislative, executive, or judicial interpretation of an existing law or laws. Covered acts of the judicial branch include — but are not limited to — denials of appeals or writs of certiorari. The Keeper’s purview does not extend to declarations of war; statutes, appropriations, regulations, or orders pertaining directly to the armed forces and intelligence services of the United States; or the employment of the armed forces and intelligence services of the United States. Nor does the Keeper’s purview extend to appointments made by or with the consent of the legislative, executive, or judicial branches.

1. b. The Keeper may nullify any act that lies within his purview, as defined in section 1.a, provided that the act occurred no more than one year before the date on which he nullifies it. The Keeper shall signify each nullification by informing the speaker of the House of Representatives, president pro-tempore of the Senate, president of the United States, and chief justice of the Supreme Court of the United States of his decision and the reason(s) therefor. The Keeper shall, at the same time, issue a public notice of his decision and the reason(s) therefor. The affected branch(es) of government shall, in each case, act promptly to implement the Keeper’s decision. Each implementing act shall be subject to review, as specified in sub-section 1.a.

As for choosing the Keeper:

2. a. The speaker of the House of Representatives and president of the United States, acting jointly, shall nominate a Keeper of the Constitution to the Supreme Court of the United States. The Supreme Court shall vote on a nominee no later than thirty days after receiving notice of a nomination. A nominee shall become Keeper upon the approval by three-fourths of the then-sitting justices of the Supreme Court.

2.b. If a nominee is rejected by the Supreme Court, the speaker and president, acting jointly, shall nominate a different person as Keeper, and shall send this second nomination to the House of Representatives and Senate. The House of Representatives and Senate shall, within thirty days of receiving notice of the nomination, meet as a single body to vote on the nominee. The nominee shall become Keeper upon approval by two-thirds of the total number of Representatives and Senators then present and voting.

2.c. If a nominee is rejected by both the Supreme Court and combined membership of the House of Representatives and Senate, the speaker and president, acting jointly, shall nominate a different person as Keeper, and shall send this third nomination to the Senate. The Senate shall, within thirty days of receiving notice of the nomination, meet to vote on the nominee. The nominee shall become Keeper upon approval by a majority of Senators then present and voting.

2.d. If the Keeper shall resign, die in office, or become unable to hold office because of a physical or mental condition attested to in writing by a unanimous panel of three doctors of medicine appointed jointly by the speaker of the House of Representatives, the president pro-tempore of the Senate, the president of the United States, and three-fourths of the then-sitting justices of the Supreme Court, a successor shall be appointed in accordance with the preceding sub-sections of this section 2.

The progressively easier method of choosing the Keeper provides an incentive for the Supreme Court to confirm the first nominee, rather than let the choice fall to the legislative branch. The provision for a third nomination is designed to ensure that the office won’t stand vacant.

I next address the term of office and related ways of keeping the Keeper “honest”:

3. a. The Keeper shall hold office during good behavior for a term of three years. The same person may not hold the office of Keeper more than once.

3.b. The Keeper may be removed from office only as follows: The speaker of the House of Representatives and president of the United States shall jointly apply to the Supreme Court of the United States for removal of the Keeper, specifying the instance(s) of official misfeasance or malfeasance that prompted their application. The Supreme Court, upon the receipt of such an application, and with due deliberation, shall vote on its merits. If  three-fourths of the then-sitting justices of the Supreme Court approve the application, the Keeper shall thereupon forfeit his office; otherwise, the Keeper then in office shall retain his position until a proper application for his removal is approved by three fourths of the then-sitting justices of the Supreme Court, or his term of office expires.

3.c. Upon removal of the Keeper from office by the foregoing procedure, a new Keeper shall be appointed, in accordance with the procedures of sub-sections 2.a, 2.b, and 2.c. Upon the appointment of a new Keeper, he shall enter upon a three-year term of office, which he may hold during good behavior.

Finally, some “housekeeping” details:

4. The Keeper shall be paid a salary of $1 per annum, but may be reimbursed for reasonable, personal expenses related to the execution of his duties. Congress shall appropriate monies for the reimbursement of the Keeper’s reasonable, personal expenses; for the reasonable compensation of the Keeper’s staff; and for the procurement, operation, and maintenance of  those facilities, equipment, and services that the Keeper and his staff may require for the execution of the Keeper’s responsibilities. The total cost of the foregoing shall not exceed $100 million per annum, which amount shall increase on the anniversary of the date of the adoption of this amendment by the same percentage as the most recent increase (if any) in cost-of-living adjustments to the pensions of veterans of the armed forces.

That’s my idea of a constitutional “monarchy” — one with real but limited power. Imagine the kind of person it would take to gain acceptance (or banishment) by three-fourths of the sitting justices of the Supreme Court (i.e., by seven of the nine). Even at the worst of times, constitutionally, I would expect there to be three or four justices on hand to ensure against the appointment of a pushover for the “living Constitution” —  which is not the Framer’s Constitution.

__________

* Now defunct and sorely missed.

Modernism in the Arts and Politics

David Friedman has a theory about the “modern” movement:

Suppose you are the first city planner in the history of the world. If you are very clever you come up with Cartesian coordinates, making it easy to find any address without a map, let alone a GPS—useful since neither GPS devices nor maps have been invented yet.

Suppose you are the second city planner. Cartesian coordinates have already been done, so you can’t make your reputation by doing them again. With luck, you come up with some alternative, perhaps polar coordinates, that works almost as well.

Suppose you are the two hundred and ninetieth city planner in the history of the world. All the good ideas have been used, all the so-so ideas have been used, and you need something new to make your reputation. You design Canberra. That done, you design the Combs building at ANU, the most ingeniously misdesigned building in my personal experience, where after walking around for a few minutes you not only don’t know where you are, you don’t even know what floor you are on.

I call it the theory of the rising marginal cost of originality—formed long ago when I spent a summer visiting at ANU.

It explains why, to a first approximation, modern art isn’t worth looking at, modern music isn’t worth listening to, and modern literature and verse not worth reading. Writing a novel like one of Jane Austen’s, or a poem like one by Donne or Kipling, only better, is hard. Easier to deliberately adopt a form that nobody else has used, and so guarantee that nobody else has done it better.

In other words, if you can’t readily do better than your predecessors, you take the easy way out by doing something different — ugly as it may be. And you call it “progress.” As I wrote here:

In the early decades of the twentieth century, the visual, auditory, and verbal arts became an “inside game.” Painters, sculptors, composers (of “serious” music), choreographers, and writers of fiction began to create works not for the enjoyment of audiences but for the sake of exploring “new” forms. Given that the various arts had been perfected by the early 1900s, the only way to explore “new” forms was to regress toward primitive ones — toward a lack of structure…. Aside from its baneful influence on many true artists, the regression toward the primitive has enabled persons of inferior talent (and none) to call themselves “artists.” Thus modernism is banal when it is not ugly.

Painters, sculptors, etc., have been encouraged in their efforts to explore “new” forms by critics, by advocates of change and rebellion for its own sake (e.g., “liberals” and “bohemians”), and by undiscriminating patrons, anxious to be au courant. Critics have a special stake in modernism because they are needed to “explain” its incomprehensibility and ugliness to the unwashed.

The unwashed have nevertheless rebelled against modernism, and so its practitioners and defenders have responded with condescension, one form of which is the challenge to be “open minded” (i.e., to tolerate the second-rate and nonsensical). A good example of condescension is heard on Composers Datebook, a syndicated feature that runs on some NPR stations. Every Composers Datebook program closes by “reminding you that all music was once new.” As if to lump Arnold Schoenberg and John Cage with Johann Sebastian Bach and Ludwig van Beethoven.

All music, painting, sculpture, dance, and literature was once new, but not all of it is good. Much (most?) of what has been produced since 1900 is inferior, self-indulgent crap.

As it was in the arts, so it was in politics. Yes, there was sleaze before 1900, and plenty of it. But presidents, members of Congress, and justices of the Supreme Court generally remained faithful to the Constitution, especially its restraints on the power of the federal government. Then along came populism and “progressivisism” — the twin pillars of political modernism in the United States — and down went liberty and prosperity.

Obama’s Law

Obama seems bent on nominating a woman (preferably a black or Hispanic one) to succeed Justice Souter. (See, for example, the top-10 list of likely nominees, at The Ninth Justice.) There’s nothing wrong with having a woman on the Supreme Court. But Obama’s evident zeal to nominate a woman  speaks volumes about his approach to the law.

The law, to Obama, isn’t a set of rules to protect the honest and — most importantly — limit government. Obama’s law know no constitutional bounds; it is a recipe that combines “empathy” (i.e., cheap compassion), political payoff, and power-lust.

A Prediction

It seems likely that General Motors will become a vassal of the United Auto Workers union and the federal government. Which means that GM will survive only because U.S. taxpayers pick up the tab in order to preserve the pensions of UAW members and keep them employed at above-market compensation. Similar arrangements may come to pass in other (effectively) nationalized industries — banking and health care, most notably (but not exclusively).

Nationalization of the auto, banking, and health-care industries (among others) will prove to be the straw that — when piled on Social Security and Medicare/Medicaid — breaks the back of the American economy. How so? The effective tax rate — the true cost of supporting Social Security, Medicare/Medicaid, nationalized industries, and the ever-growing panoply of government “services”  — will further (and fatally) deter work, saving, capital investment, innovation, and entrepreneurship. (See, for example, this piece by Lawrence Kudlow.)

The economy, if we are lucky, will muddle along at a rate of growth that is barely positive. And that growth will be phony because it will be attributable to the expansion of the public sector (i.e., government and its wholly controlled subsidiaries). We will then have achieved the Left’s Nirvana: Europeanism.

God help us. It’s unlikely that anyone else will.

UPDATE: Arnold Kling makes a related and equally gloomy prediction:

Cato Unbound this month deals with a core issue. Peter Thiel writes,

I no longer believe that freedom and democracy are compatible…

As one fast-forwards to 2009, the prospects for a libertarian politics appear grim indeed. Exhibit A is a financial crisis caused by too much debt and leverage, facilitated by a government that insured against all sorts of moral hazards — and we know that the response to this crisis involves way more debt and leverage, and way more government. Those who have argued for free markets have been screaming into a hurricane. The events of recent months shatter any remaining hopes of politically minded libertarians. For those of us who are libertarian in 2009, our education culminates with the knowledge that the broader education of the body politic has become a fool’s errand.

I think that perhaps the best positive approach for libertarians right now is to support institutions that compete with government. That means charities, churches, charter schools, clubs, consumer information services, and other sources of public goods. I would count the traditional family as an institution that competes with government.

You are likely to see Democrats under President Obama launch assaults against all of the institutions of civil society. Already, the Washington DC school voucher program is under attack, as is the tax deduction for charitable contributions. As libertarians, our electoral voice is worth little. Our threat to exit is probably too costly to carry out. Promoting institutions that compete with government is the best strategy I can come up with.

I tend to agree that for libertarians the “voice” option is looking bleak. I prefer exit options. But by the same token, I do not want to move to New Hampshire (see Jason Sorens) or to a seastead (see Patri Friedman).

UPDATE 2: The Supreme Court will be of no help to us, if Ed Whelan and I are right about its likely direction. I focus on the long run; Whelan, on the near future. Sadly, I must agree with his assessment:

Don’t be fooled by the false claims that we have a conservative Supreme Court. The Court has a working majority of five living-constitutionalists. Four of them—Stevens, Souter, Ginsburg, and Breyer—consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does. As a result, the Court is markedly to the left of the American public on a broad range of issues. Indeed, in coming years, Souter’s replacement may well provide the fifth vote for

  • the imposition of a federal constitutional right to same-sex marriage;
  • stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;
  • the continued abolition of the death penalty on the installment plan;
  • selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;
  • further judicial micromanagement of the government’s war powers; and
  • the invention of a constitutional right to human cloning.

American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation.

Fascism with a “Friendly” Face

This is the core meaning of fascism:

Fascism is a system in which the government leaves nominal ownership of the means of production in the hands of private individuals but exercises control by means of regulatory legislation and reaps most of the profit by means of heavy taxation. In effect, fascism is simply a more subtle form of government ownership than is socialism.

A fascistic government  — even a totalitarian one — will try to secure broad political support for itself. Scapegoating is a common technique for developing political support. Scapegoating, when successful, fosters the belief that the country’s economic and/or social problems — the ones that the fascistic regime promises to cure — are due to the actions of particular, identifiable groups of citizens. Another common technique is the suppression of dissent, which stifles critical commentary while imparting to the timid masses a lesson in the value of submissiveness to the regime.

Successful scapegoating serves two purposes. First, it turns public scrutiny away from the regime’s mistakes and misdeeds and toward the supposed misdeeds of the scapegoated groups. Second, scapegoating helps to build public support for the regime by identifying it as a force for good, as opposed to the scapegoated groups, which are painted as sources of evil.

Fascism, despite its prevailing image in the popular mind, need not come about through the efforts of black- or brown-shirted thugs. If you will re-read the opening definition of fascism, it should remind you of the present state of affairs in the United States, given that the federal government has assumed de facto control of two leading industries — financial services and automobile manufacturing — the first of which is central to the operations of America’s businesses.*

How did the United States get to this point? Through the “democratic” process, that’s how — without a shot, without a coup, without a foaming-at-the-mouth dictator. The citizens of the United States — enough of them, anyway — have, over the past eight decades, elected the members of Congress and the presidents (and, indirectly, their judicial appointees) who have brought us to our present state. The grinning FDR was a fascist; the smiling Obama is acting like one (see first footnote). Thus “Fascism with a ‘Friendly’ Face” (alternative title: “Bread and Circuses Redux“).

I now turn to the unfriendly face of fascism, that is, to scapegoating and the suppression of dissent. There was scapegoating a-plenty under FDR, as exemplified by his attacks on “economic royalists.” According to FDR, among many other rabble-rousers of the time, “the rich” were to blame for the Depression and were standing in the way of recovery. That FDR’s demonization of “the rich” and his schemes for centralizing power in Washington were the real obstacles to recovery is a fact that eluded his second-rate mind and which still eludes most Americans (even  a Nobel laureate). (For much more, you should buy and read FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression, which I own and have read critically. It’s repetitive and a somewhat dumbed-down, but generally on the mark.)

We are seeing, under Obama, a renewal of scapegoating. It is evident in his plans to soak “the rich,” which would (among other things) lead to income redistribution. As if the the recession could be cured by raising taxes on the very group that is most responsible for economic growth. As if very high incomes were the result of some kind of conspiracy and not symptomatic of a dynamic, growing economy. (For more about income inequality, see this, this, this, this, this, this, and this.) Scapegoating also is evident in Obama’s attack on hedge-fund managers who refused (how dare they!) to roll over and allow the holders of Chrysler bonds to suffer for the benefit of the UAW, to which Chrysler owes its (hoped for) demise. (One hedge-fund manager’s brisk and appropriate response to Obama’s attack is here.)

Then there is Obama’s decision to join the Left’s campaign to pin the “torturer” label on the Bush administration, thereby legitimating that campaign. We might yet witness the unprecedented spectacle of an incoming U.S. administration trying members of the previous administration for what amount to political “crimes” against Leftist sensibilities.

Obama’s ascendancy, though achieved by a fairly narrow popular-vote margin, has emboldened the Left (in and out of government) in other efforts to scapegoat conservatives and suppress conservative views; viz.:

  • this report from the Department of Homeland Security (especially the footnote on page 2) and related commentary (e.g., here, here, here, and here), all reminiscent of 1964, when Barry Goldwater was vilified (successfully) as an extremist because he stood against the concentration of power in Washington;
  • denunciations of the “tea party” movement (e.g. here and here);
  • efforts by universities and public officials to suppress dissent (e.g., here, here, here, and here), most notably Sen. Jay Rockefeller’s proposal to give the president authority to shut down the internet; and

Regarding the suppression of dissent, it is noteworthy that Obama’s has tagged Cass Sunstein (a Chicago crony) to head the Office of Information and Regulatory Affairs in the White House. (See this article for more about the likely direction of OIRA under Sunstein.) My biggest concern about Sunstein, who figures to be a strong influence on Obama, is his embrace of the oxymoronical thing known as “libertarian paternalism.” (For an exposition of its flaws, see this post and its predecessors, linked therein.)

“Libertarian paternalism” is nothing more than a dressed-up version of paternalism, in which the government is used to “nudge” people toward making the kinds of decisions that Sunstein and his ilk would make. That is to say, Sunstein (like too many other bright individuals) likes to believe that he knows what’s best for others. (That conceit is demolished in the posts mentioned at the end of the preceding paragraph and in these posts by an avowed utilitarian.)

“Libertarian paternalism” may seem innocuous, but there’s more to it than a bit of “nudging” (hah!) by the one-ton gorilla in the room (i.e., the federal government). Perhaps the most frightening item on Sunstein’s paternalistic agenda ties into Sen. Rockefeller’s proposal to give the president the power to shut down the internet — which amounts to the power to control the content of the internet. And make no mistake about it, Sunstein would like to control the content of the internet — for our own good, of course. I refer specifically to Sunstein’s “The Future of Free Speech,” in which he advances several policy proposals, including these:

4. . . . [T]he government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way. They would not be required to click on them. But it is reasonable to expect that many viewers would do so, if only to satisfy their curiosity. The result would be to create a kind of Internet sidewalk, promoting some of the purposes of the public forum doctrine. Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured. Perhaps a lottery system of some kind could be used to reduce this risk.

5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views. This policy would be designed to make it less likely for people to simply hear echoes of their own voices. Of course, many people would not click on the icons of sites whose views seem objectionable; but some people would, and in that sense the system would not operate so differently from general interest intermediaries and public forums. Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives. [Emphasis added.]

A Left-libertarian defends Sunstein’s foray into thought control, concluding that

Sunstein once thought some profoundly dumb policies might be worth considering, but realized years ago he was wrong about that… The idea was a tentative, speculative suggestion he now condemns in pretty strong terms.

Alternatively, in the face of severe criticism of his immodest proposal, Sunstein merely went underground, to await an opportunity to revive his proposal. I somehow doubt that Sunstein, as a confirmed paternalist, truly abandoned it. The proposal certainly was not off-the-cuff, running to 11 longish web pages.  Now, judging by the bulleted list above, the time is right for a revival of Sunstein’s proposal. And there he is, heading the Office of Information and Regulatory Affairs. The powers of that office supposedly are constrained by the executive order that established it. But it is evident that the Obama adminstration isn’t bothered by legal niceties when it comes to the exercise of power. Only a few pen strokes stand between Obama and a new, sweeping executive order, the unconstitutionality of which would be of no import to our latter-day FDR.

Where will it all end? As I argue here, the United States already has descended into statism. The further descent into ingrained fascism is but a fine-tuning exercise for the vast, Left-wing alliance, which consists of public-school “educators,” liberal-arts academics, and their sycophantic students; Hollywood and New York celebrities and their hangers-on; “artists” and “intellectual workers” of most stripes; well-educated, upper-income, professionals who live in and around major metropolitan areas; and hordes of politicians (local, State, and national), who foster and benefit from the prejudices of the alliance. This broad alliance patronizes idealistic twenty-somethings, blacks, Latins, and labor-union members — the four groups from which its favored political candidates draw decisive support at the polls.

The Leftist alliance scorns America and its traditional (but largely abandoned) values of personal responsibility and respect for the persons and property of others. The alliance exalts, instead, the politics of entitlement and envy, of class, ethnic, racial, and gender conflict. As a result, the alliance has succeeded in demolishing the long-standing consensus that the main constitutional functions of the federal government are “to establish Justice, provide for the common defence,” and ensure the free movement of goods and persons among the States.**

Where will it all end? Unless we are roused from our Leftist idyll by some-one or some-thing, it will end in an Orwellian nightmare. The state will control our lives, in minute detail, from conception (and the prevention thereof) to death (and the means thereof).
__________
* For some views about our descent into fascism (even where it isn’t called that), see these posts of mine:
Things to Come
Reclaiming Liberty Throughout the Land
Are We All Fascists Now?

See  also these posts and articles by other writers:
Fundamentally Different
Obama the Planner
Obama: The Grand Strategy
The Death of Democratic Capitalism?
Tarred by TARP
Elizabeth Warren’s Holy Crusade
Pay Limits May Apply to Toxic-Asset Relief Program, Report Says
Environmentalists Are Funny. Right?
EPA’s Endangerment Finding
EPA Says Greenhouse Gases are Threat to Public

** The preamble to the Constitution also mentions “insur[ing] domestic Tranquillity,” “provid[ing] for the general Welfare,” and “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” These injunctions — aside from a few specific, textual grants of power for dealing with insurrections — merely reflect the Framers’ hopes for the nation’s future under the auspices of the new Constitution.