Independence Day 2016: The Way Ahead

Prudence…will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations…reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.… [A]nd such is now the necessity which constrains them to alter their former Systems of Government. The history…is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

Declaration of Independence
(In Congress. July 4, 1776. The unanimous Declaration
of the thirteen united States of America)

*      *      *

It is fitting, in this summer of discontent, to be faced with a choice between the spiritual descendants of P.T. Barnum and Lady Macbeth. Washington, Jefferson, and Madison are spinning in their graves, at high velocity.

The candidacies of Trump and Clinton are symptoms of the looming demise of liberty in the United States. There hasn’t been a candidate since Ronald Reagan who actually understood and believed that Americans would be freer and therefore more prosperous if the central government were contained within the four corners of the Constitution. (And even Reagan had a soft spot in his heart for Social Security.) Nevertheless, it is appalling but unsurprising that liberty’s end is in sight just 27 years after Reagan left office.

What went wrong? And how did it go wrong so quickly? Think back to 1928, when Americans were more prosperous than ever and the GOP had swept to its third consecutive lopsided victory in a presidential race. All it took to snatch disaster from the jaws of delirium was a stock-market crash in 1929 (fueled by the Fed) that turned into a recession that turned into a depression (also because of the Fed). The depression became the Great Depression, and it lasted until the eve of World War II, because of the activist policies of Herbert Hoover and Franklin Roosevelt, which suppressed recovery instead of encouraging it. There was even a recession (1937-38) within the depression, and the national unemployment rate was still 15 percent in 1940. It took the biggest war effort in the history of the United States to bring the unemployment rate back to its pre-depression level.

From that relatively brief but deeply dismal era sprang a new religion: faith in the central government to bring peace and prosperity to the land. Most Americans of the era — like most human beings of every era — did not and could not see that government is the problem, not the solution. Victory in World War II, which required central planning and a commandeered economy, helped to expunge the bitter taste of the Great Depression. And coming as it did on the heels of the Great Depression, reinforced the desperate belief — shared by too many Americans — that salvation is to be found in big government.

The beneficial workings of the invisible hand of competitive cooperation are just too subtle for most people to grasp. The promise of a quick fix by confident-sounding politicians is too alluring. FDR became a savior-figure because he talked a good game and was an inspiring war leader, though he succumbed to pro-Soviet advice.

With war’s end, the one-worlders and social engineers swooped on a people still jittery about the Great Depression and fearful of foreign totalitarianism. (The native-born variety was widely accepted because of FDR’s mythic status.) Schools and universities became training grounds for the acolytes of socialism and amoral internationalism.

Warren Henry is right when he says that

progressivism is…broadly accepted by the American public, inculcated through generations of progressive dominance of education and the media (whether that media is journalism or entertainment). Certainly Democrats embrace it. Now the political success of Donald J. Trump has opened the eyes of the Right to the fact that Republicans largely accept it….

Republicans have occasionally succeeded in slowing the rate at which America has become more progressive. President Reagan was able to cut income tax rates and increase defense spending, but accepted tax increases to kick the can on entitlements and could not convince a Democratic Congress to reduce spending generally. Subsequent administrations generally have been worse. A Republican Congress pressured Bill Clinton into keeping his promise on welfare reform after two vetoes. He did so during a period when the end of the Cold War and the revenues from the tech bubble allowed Washington to balance budgets on the Pentagon’s back. Unsurprisingly, welfare reform has eroded in the ensuing decades.

Accordingly, the big picture remains largely unchanged. Entitlements are not reformed, let alone privatized. To the contrary, Medicare was expanded during a GOP administration, if less so than it would have been under a Democratic regime…. Programs are almost never eliminated, let alone departments.

The Right also loses most cultural battles, excepting abortion and gun rights. Notably, the inroads on abortion may be due as much to the invention and deployment of the sonogram as the steadfastness of the pro-life movement. Otherwise, political and cultural progressivism has been successful in their march through the institutions, including education, religion, and the family.

Curricula increasingly conform to the progressive fashions of the moment, producing generations of precious snowflakes unequipped even to engage in the critical thinking public schools claim to prioritize over an understanding of the ages of wisdom that made us a free and prosperous people. Church membership and attendance continues their long-term decline. A country that seriously debated school prayer 30 years ago now debates whether Christians must be forced to serve same-sex weddings.

Marriage rates continue their long-term decline. Divorce rates have declined from the highs reached during the generation following the sexual revolution, but has generally increased over the course of the century during which progressivism has taken hold (despite the declining marriage rate). Those advocating reform of the nation’s various no-fault divorce laws are few and generally considered fringe.

There’s more, but disregard Henry’s reification of America when he should write “most Americans”:

Meanwhile, America has voted for decade after decade of tax-and-spend, borrow-and-spend, or some hybrid of the two. If the white working class is now discontented with the government’s failure to redress their grievances, this is in no small part due to the ingrained American expectation that government will do so, based on the observation that government typically hungers to increase government dependency (not that the white working class would use these terms).…

In sum, while it is correct to note that elites are not doing their jobs well, it is more difficult to conclude that elites have not been responding to the political demands of the American public as much as they have driven them.…

The presidential nominees our two major parties have chosen are largely viewed as awful. But Hillary Clinton and Donald Trump offer two slightly different versions of the same delusion: that progressivism works, if only the elites were not so stupid. This delusion is what most Americans currently want to believe.

Sad but disastrously true. Dependency on government has become deeply ingrained in the psyche of most Americans. As Timothy Taylor points out,

[g]overnment in the United States, especially at the federal level, has become more about transfer payments and less about provision of goods and services.…

[There has been an] overall upward rise [of transfer payments] in the last half-century from 5% of GDP back in the 1960s to about 15% of GDP in the last few years….

The political economy of such a shift is simple enough: programs that send money to lots of people tend to be popular. But I would hypothesize that this ongoing shift not only reflects voter preferences, but also affect how Americans tend to perceive the main purposes of the federal government. Many Americans have become more inclined to think of federal budget policy not in terms of goods or services or investments that it might perform, but in terms of programs that send out checks.

What lies ahead? Not everyone is addicted to government. There are millions of Americans who want less of it — a lot less — rather than more of it. Here, with some revisions and an addition, are options I spelled out three years ago:

1. Business as usual — This will lead to more and more government control of our lives and livelihoods, that is, to less and less freedom and prosperity (except for our technocratic masters, of course).

2. Rear-guard action — This option is exemplified by the refusal of some States to expand Medicaid and to establish insurance exchanges under the Affordable Care Act. This bit of foot-dragging doesn’t cure the underlying problem, which is accretion of illegitimate power by the central government. Further, it can be undone by fickle voters and fickle legislatures, as they succumb to the siren-call of “free” federal funds.

3. Geographic sorting — The tendency of “Blue” States to become “bluer” and “Red” States to become “redder” suggests that Americans are sorting themselves along ideological lines. As with rear-guard action, however, this tendency — natural and laudable as it is — doesn’t cure the underlying problem: the accretion of illegitimate power by the central government. Lives and livelihoods in every State, “Red” as well as “Blue,” are controlled by the edicts of the legislative, executive, and judicial branches of the central government. There is little room for State and local discretion. Moreover, much of the population shift toward “Red” must be understood as opportunistic (e.g., warmer climates, right-to-work laws) and not as an endorsement of “Red” politics.

4. Civil disobedience — Certainly called for, but see options 5, 6, and 7.

5. Underground society and economy — Think EPA-DOL-FBI-IRS-NSA, etc., etc., and then dismiss this as a serious option for most Americans.

6. The Benedict Option, about which Bruce Frohnen writes:

[Rod] Dreher has been writing a good deal, of late, about what he calls the Benedict Option, by which he means a tactical withdrawal by people of faith from the mainstream culture into religious communities where they will seek to nurture and strengthen the faithful for reemergence and reengagement at a later date….

The problem with this view is that it underestimates the hostility of the new, non-Christian society [e.g., this and this]….

Leaders of this [new, non-Christian] society will not leave Christians alone if we simply surrender the public square to them. And they will deny they are persecuting anyone for simply applying the law to revoke tax exemptions, force the hiring of nonbelievers, and even jail those who fail to abide by laws they consider eminently reasonable, fair, and just.

7. A negotiated partition of the country — An unlikely option (discussed in this post and in some of the posted linked to therein) because, as discussed in option 6, “Blue” will not countenance the loss of control over millions of lives and livelihoods.

8. Secession — This is legal and desirable — as long as the New Republic of free states is truly free — but (a) it is likely to be met with force and therefore (b) unlikely to attract a critical mass of States.

9. Coup — Suggested several years ago by Thomas Sowell:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

Glenn Reynolds, who is decidedly anti-coup, writes

that the American Constitution, along with traditional American political culture in general, tends to operate against those characteristics, and to make the American polity more resistant to a coup than most. It is also notable, however, that some changes in the Constitution and in political culture may tend to reduce that resistance….

The civics-book statement of American government is that Congress passes laws that must be signed by the president (or passed over a veto), and that those laws must be upheld by thejudiciary to have effect. In practice, today’s government operates on a much more fluid basis, with administrative agencies issuing regulations that have the force of law – or, all too often, “guidance” that nominally lacks the force of law but that in practice constitutes a command – which are then enforced via agency proceedings.…

[I]t seems likely that to the extent that civilians, law enforcement, and others become used to obeying bureaucratic diktats that lack a clear basis in civics-book-style democratic process, the more likely they are to go along with other diktats emanating from related sources. This tendency to go along with instructions without challenging their pedigree would seem to make a coup more likely to succeed, just as a tendency to question possibly unlawful or unconstitutional requirements would tend to make one less likely to do so. A culture whose basis is “the law is what the bureaucrats say it is, at least unless a court says different,” is in a different place than one whose starting impulse is “it’s a free country.”…

[P]ersistent calls for a government-controlled “Internet kill switch”49 – justified, ostensibly, by the needs of cyberdefense or anti-terrorism – could undercut that advantage [of a decentralized Internet]. If whoever controlled the government could shut down the Internet, or, more insidiously, filter its content to favor the plotters’ message and squelch opposition while presenting at least a superficial appearance of normality, then things might actually be worse than they were in [Fletcher Knebel and Charles Bailey’s Seven Days in May, which imagined an attempted coup by a Curtis LeMay-like general].…

[T]he most significant barrier to a coup d’etat over American history has probably stemmed simply from the fact that such behavior is regarded as un-American. Coups are for banana republics; in America we don’t do that sort of thing. This is an enormously valuable sentiment, so long as the gap between “in America” and “banana republics” is kept sufficiently broad. But it is in this area, alas, that I fear we are in the worst shape. When it comes to ideological resistance to coups d’etat, there are two distinct groups whose opinions matter: The military, and civilians. Both are problematic….

[T]here are some troubling trends in civilian/military relations that suggest that we should be more worried about this subject in the future than we have been in the past…

Among these concerns are:

  • A “societal malaise,” with most Americans thinking that the country was on “the wrong track.”
  • A “deep pessimism about politicians and government after years of broken promises,” leading to an “environment of apathy” among voters that scholars regard as a precursor to a coup.
  • A strong belief in the effectiveness and honor of the military, as contrasted to civilian government.
  • The employment of military forces in non-military missions, from humanitarian aid to drug interdiction to teaching in schools and operating crucial infrastructure.
  • The consolidation of power within the military – with Congressional approval – into a small number of hands….
  • A reduction in the percentage of the officer corps from places outside the major service academies.…
  • A general insulation of the military from civilian life…. “Military bases, complete with schools, churches, stores, child care centers, and recreational areas, became never-to-be-left islands of tranquility removed from the chaotic crime-ridden environment outside the gates…. Thus, a physically isolated and intellectually alienated officer corps was paired with an enlisted force likewise distanced from the society it was supposed to serve [quoting from an essay by Charles J. Dunlap, “The Origins Of The American Military Coup of 2012,” Parameters, Winter, 1992-93, at 2]….

[D]istrust in the civilian government and bureaucracy is very high. A 2016 Associated Press/National Opinion Research Center poll found that more than 6 in 10 Americans have “only slight confidence – or none at all” that the federal government can successfully address the problems facing the nation. And, as the AP noted, this lack of confidence transcends partisan politics: “Perhaps most vexing for the dozen or so candidates vying to succeed President Barack Obama, the poll indicates widespread skepticism about the government’s ability to solve problems, with no significant difference in the outlook between Republicans and Democrats.”

As a troubling companion to this finding, the YouGov poll on military coups…also found a troubling disconnect between confidence in civilian government and confidence in the military: “Some 71% said military officers put the interests of the country ahead of their own interests, while just 12% thought the same about members of Congress.” While such a sharp contrast in views about civilian government and the military is not itself an indicator of a forthcoming coup, it is certainly bad news. Also troubling are polls finding that a minority of voters believes that the United States government enjoys the consent of the governed.63 This degree of disconnection and disaffection, coupled with much higher prestige on the part of the military, bodes ill.

Or well, if you believe that a coup is the only possible salvation from despotism.

Military personnel (careerists, in particular) are disciplined, have direct access to the tools of power, and many of them are trained in clandestine operations. Therefore, a cadre of properly motivated careerists might possess the wherewithal necessary to seize power. But a plot to undertake a coup is easily betrayed. (Among other things, significant numbers of high-ranking officers are shills for the regulatory-welfare state.) And a coup, if successful, might deliver us from a relatively benign despotism into a decidedly malign despotism.

But unless there is a negotiated partition of the country — perhaps in response to a serious secession movement — a coup is probably the only hope for the restoration of liberty under a government that is true to the Constitution.

The alternative is a continuation of America’s descent into despotism, which — as many Americans already know — is no longer the “soft” despotism foreseen by Tocqueville.

*      *      *

Related posts (in addition to those linked to throughout this one):
The Real Constitution and Civil Disobedience
A Declaration of Independence
A Declaration of Civil Disobedience
The States and the Constitution
And many more here

Has America Always Been Leftist?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr. Ray’s sweeping use of “Leftist” aside, his main point is well taken. I made a similar observation in response to a post by Timothy Sandefur, who was then guest-blogging at The Volokh Conspiracy. Sandefur, writing about his book The Conscience of the Constitution, asserted that “The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives.” I responded:

Did they, really? All of them, including the slave owners? Or did they simply want to relocate the seat of power from London to the various State capitals, where local preferences (including anti-libertarian ones) could prevail? Wasn’t that what the Declaration of Independence and Articles of Confederation were all about? The Constitution simply moved some of the power toward the national capital, mainly for the conduct of foreign policy and trade. Despite that, the Constitution was a “States’ rights” document, and remained that way until the ratification of Amendment XIV, from which much anti-libertarian mischief has emanated.

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

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

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

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

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

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

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

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

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

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

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

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

*     *     *

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

The Futile Search for “Natural Rights”

Timothy Sandefur has begun a guest-blogging stint at The Volokh Conspiracy, whence he will regale us with theses from his book, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Sandefur’s first post is “The Conscience of the Constitution: An Introduction.” In it, he writes:

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom.

Let’s start with the easy part: the first sentence of the second-quoted paragraph. Did the founders really hold that people are inherently free? All founders, including slave owners? All people, including slaves? Or did the founders simply want to relocate the seat of power from London to the various State capitals, where local preferences (including anti-libertarian ones) could prevail? Wasn’t that what the Declaration of Independence and Articles of Confederation were mainly about? The Constitution simply moved some of the States’ power toward the national capital, and then mainly to establish uniformity in the conduct of foreign policy and war-making, to eliminate intra-State trade barriers, and to establish a uniform policy with respect to international trade.

On the whole, the original Constitution as amended quickly by the Bill of Rights was largely a “States’ rights” document. Certain individual rights were recognized by the central government, but it was left to the powers-that-be in each State to decide where to draw the line between individual rights and governmental powers. (As an aside I note that the Constitution remained a States’ rights document until the ratification of Amendment XIV. And then, over the decades — and through a combination of legislative, executive, and judicial actions — it became a central-government-powers document, from which much anti-libertarian mischief has emanated.)

In sum, Sandefur’s premise is wrong. The Declaration and Constitution are not libertarian manifestos — as Sandefur, in effect, characterizes them. Despite the rhetoric about “We the People,” “inalienable rights,” “liberty,” and the rest of it, the Declaration and Constitution are about who governs, and about the division of rights and powers between “the people” and government..

The essential problem with Sandefur’s analysis lies in his Manichean approach to rights. In his view, they are either inherent in individual persons or they are granted by government. (He denies the second possibility, of course.) There is a third way, which doesn’t figure in Sandefur’s post (though perhaps he addresses it in the book). The third way is hinted at in the paper by Randy Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights,” to which Sandefur links: “natural rights…. describe how others ought to act towards rights-holders.”

In other words, the thing (for want of a better word) that arises from human nature is not a set of rights that each person “owns”; rather, it is an inclination or imperative to treat others as if they have rights. This idea of being inclined (or compelled) to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we (most of us) learn that it is a good thing to leave others alone as long as they do no harm to us or mean no harm to us. That is a much more plausible explanation of rights than the claim that rights inhere in individuals as rights-holders.

Given the more plausible view that rights are a matter of “acting toward” others, it should be evident — to all but romanticists of Sandefur’s ilk — that rights are not a priori (“inherent”) but arise from interpersonal bargaining (at best) and governmental edicts (at worst). It cannot be otherwise, for even if human beings are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way. Thus claims about “natural rights” are not only foolish but futile. Rights, inescapably, are a matter of persuasion (at best) and power (at worst, unless the power happens to be on the “right” side).

That said, as Sandefur observes in “Teleology without God,” he and I “agree on the qualities of … rights once their existence is granted.” Specifically, we seem to agree that negative rights are the only rights worthy of the name because only negative rights can be held universally.

Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make something-for-nothing promises of positive rights.

*     *     *

Note: Much of the foregoing is borrowed from “Evolution, Human Nature, and ‘Natural Rights’,” my last entry in an exchange of posts with Sandefur on the subject of rights. He has not, as far as I know, issued a rejoinder.

*     *     *

Related posts:

These are some of the many posts at this blog which bear on the origins, nature, suppression, and restoration of negative rights:

On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
More about Consequentialism
Atheism, Agnosticism, and Science
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Social Justice
Evolution, Human Nature, and “Natural Rights”
Burkean Libertarianism
Rights: Source, Applicability, How Held
What Is Libertarianism?
Nature Is Unfair
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Why Conservatism Works
The Pool of Liberty and “Me” Libertarianism
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
“We the People” and Big Government
The Social Animal and the “Social Contract”

A Declaration of Civil Disobedience

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See “The Constitution: Myths and Realities“.

A Declaration of Independence, Updated

If you haven’t read “A Declaration of Independence,” or haven’t read it since I revised it, I recommend a first or second look.

A Declaration of Independence

See “The Constitution: Myths and Realities“.