Kagan and the Constitution

Kagan and the Constitution

It is frustrating having politicians talk about rights.

Last week, Supreme Court Justice nominee Elena Kagan, the White House’s solicitor general, was being questioned by Sen. Tom Coburn (Okla.) about natural rights.

The day before, he had unsuccessfully tried to get Kagan to concede that the constitution’s Commerce Clause does not give government the power to mandate by force (“Law is force,” Bastiat said) that Americans must consume fruits and vegetables. Kagan, by the way, never answered definitively but seems to say that non-economic activity, which presumably means eating, falls outside the scope of federal powers. Yet, in the case of marijuana, just possessing the substance was considered a commercial activity if the law were part of a larger regulatory (control) framework. So a stand-alone law mandating everyone in America eat their veggies would be unconstitutional, but if it were part of a national health care initiative, it is probably a go.

In his follow-up questions the next day, Coburn asked if self-defense was a natural right pre-existing the constitution. Kagan’s response was revealing. According to a CNN transcript, she said,”Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.”

I am not defending the constitution by any means, nor do I expect the government to abide by its own rules and laws. However, it should be pointed out when government people do not live up to their own rules. Kagan is directly in conflict with the ninth amendment of the Bill of Rights, which states that “the people” possess other rights not previously enumerated. Famously, the founders said that we are endowed “with certain unalienable rights …. That to secure these rights, Governments are instituted among Men.” For Kagan to say “I don’t have a view of what are natural rights, independent of the Constitution” means she is completely unfit by the government’s own standards to serve on the Supreme Court.

I cannot just fault Kagan. Though widespread, the idea that government should exist to defend our liberty and property is already completely contradictory. Government systematically assaults our liberty and property. From “all men are created equal” to “Congress shall have Power To lay and collect Taxes” signals a complete defiance of inalienable rights and the natural law of equal liberty. Taxation is modeled on the idea of paying royalties for the privilege of engaging in commerce, owning property or earning a living.

I am aware Kagan is all but guaranteed to be confirmed. She will be one of nine people who ultimately interpret what the constitution means. So when it comes down to it, the rule of law is still the rule of men (and three women). But through indoctrination and guilt-laden propaganda, people have come to accept and embrace the authority over them. The whole show — the law, the authority and, ultimately, the government — are just manifestations of bad ideas.

Ideas fuel fear and avarice. You cannot shoot an idea or dynamite a myth. They are invincible to violence, even self-defense. Luckily, ideas also fuel truth and beauty.

Liberty supporters are at a distinct advantage though. Lies require constant supervision and constant maintenance. Lies must be heaped upon lies. Truth and beauty stand on their own. Like scientists, philosophers and intellectuals must transmit their discoveries if their work is to have any value. In business, that is the role of the entrepreneur, to turn concepts into consumables. For truth and beauty to have any power, they too must be communicated and acted upon to be made real. They must be practiced. That is the most admirable role of the liberty activist. That is how we will get our certainty and our freedom now, by living it.

Image credit: Cayusa, with Creative Commons license

Darian Worden on Why Libertarians Are Left

Generally, I agree that the terms “left” and “right” in the mainstream political vernacular are a false alternative. Both liberals and conservatives support a violent organization that usurps individual rights and autonomy by its very existence. They may do so for different reasons, but both are reactionary hypocrites or at least very confused.

I do think those terms have a legitimate use in referencing the means and the scope to which those means are used.

With that said, Darian Worden gave a great presentation (below) on why libertarianism is a left ideology. You can learn more about left-libertarianism at the Alliance of the Libertarian Left and join local ALLies in the Metroplex at the DFW Alliance of the Libertarian Left.

More of Worden’s work can be found at the Center for a Stateless Society.

Tilting at Electoral Windmills

The phrase “tilting at windmills” is often meant as a swipe at someone who incorrectly perceives a non-existent or idealized enemy and pursues a course of action based on that misunderstanding. The phrase was inspired by the the character Don Quixote, who battles make-believe giants taking the form of windmills dotting the countryside in Miguel de Cervantes’ novel.

For minarchists, constitutionalists, and so-called patriots, their primary path for reigning in the abuses of the federal and state governments has been through the conventional political process — electoral politics, lobbying, and petitioning. It’s been a long path too, since 1787, when the nation’s second constitution was formulated.

More precisely, limited-state supporters have tried to scale back the powers of the federal government since President George Washington marched conscripted troops on Pennsylvania whiskey tax resistors in 1794. Many look back at the early days of the federal government with starry-eyed vision of a glorious republic that was the hallmark of what a government ought to be. Never mind that, at the time of its inception, there was never a common interpretation of the what the constitution meant or how far the federal powers reached. What they forget was that while, yes, the government was relatively small and insignificant in most people’s lives, that was because it was a new government. It was paying off a tremendous war debt and was biding its time to gain legitimacy. As Secretary of the Treasury Alexander Hamilton noted, the purpose of the whiskey tax had less to do with paying down the debt than “to advance and secure the power of the new federal government.”

Long Odds, Losing Payoff

Despite over 200 years of trying to reform the system, government at all levels continues to grow at an ever-expanding pace. Since the likes of Adam Smith and Thomas Jefferson, advocates of limited government have failed to restrain government to its self-imposed, self-enforced, and self-interpreted constitution. Today, over half of Americans “now receive significant income from government programs,” according to one study. (That estimate is understated because even those who work in the private sector and have nothing to do with government contracts can also ride on the government’s dime if they support the wars in Iraq and Afghanistan, for example. They get to shift the costs of those wars onto future generations through deficit financing.) The figure above has nearly doubled since the 1950s, when just over a quarter of Americans relied on government for significant support. With aging baby boomers set to retire in the coming decade, the number is only going to increase. Limited-state advocates were unsuccessful 50 years ago, when government had far less influence. Now, with a 100 percent fiat printing press at its fingertips and 12-year indoctrination camps under its control, the chances of rolling back government by using government are even bleaker.

With data like this, is there any reason to believe that Americans who directly or indirectly receive government handouts are going to support limiting those handouts? After all, Social Security and government heath care recipients, who represent the largest direct beneficiaries, “earned” their entitlements.

Anecdotally, I know someone who believes a clandestine band of government officials orchestrated the 9/11 attacks for the fortune of the military-congressional complex yet actively sought and attained a position at one of the largest military contractors in the world. When asked to reconcile this belief and taking a job with a believed co-conspirator in the 9/11 attacks, it was “for the benefits,” I was told.

The election process requires 50 percent of the vote plus one. The odds of electing small-government advocates en mass is even longer considering those who receive government support are more likely to participate in the electoral process than others. Also consider that those who receive government support have family and friends. Is it reasonable to expect people, no matter how principled, to vote to dump their loved ones off Social Security or deny their grandparents access to a Medicare doctor? In my heart, if I had to cast the deciding vote, I could not do it. Maybe I am a hypocrite (fair enough), but I don’t think I’m much different from traditional voters. The social and familial pressures I’d face would be unbearable.

When I talk to people about reducing or eliminating a government program, it’s always the same objection. “What about the poor and the elderly?” I have no doubt that they would be cared for since nearly everyone has the same objection and government actively creates poverty. (I would be a little concerned if no one expressed concern for their well being.) Those concerns are appeals to our decency and ethics. Yet, the most prominent case being made for smaller government is on teleology grounds, a utilitarian argument, in effect conceding the ethical high ground to violence and theft. How backward.

A possible reason most limited-government supporters do not make a deontological (or ethics-based) case for liberty is because it would reveal their logical contradiction. They cannot support liberty, peace and a limited state, which necessarily is based on aggressive violence by its very existence, as any non-consensual territorial monopoly would be. Limited-state supporters and maximum-state supporters, thus, have already agreed that aggressive violence is necessary to solve social problems. The only disagreement is over how much violence is necessary.

Ignoring Imaginary Giants

As I see it, electoral politics is our Quixotic imaginary giant. It’s a distraction. No matter how many laws are on the books, all that matters is government currently has the legitimacy and the power to enforce them. If we undermine its legitimacy, its power won’t matter. They will still hold the gun in the room, but we will all know they have no bullets. We don’t need to convince a majority of our ideas either. We need a determined minority who will withdraw their consent in spirit and in practice. Many already have. It’s easy to get started. They practice their trade outside the strictures of government regulation, enjoying the benefits of an unregulated open market. Others can do the same and in such a way as to build trusted, decentralized networks of traders and entrepreneurs who directly and immediately benefit from these ideas.

I don’t propose abandoning the electoral process entirely. So long as a majority of people give the concept of democracy some weight, it provides a free soap box to spread our ideas. I wouldn’t look to electoral progress as a sign of our influence either, as the conventional political process is a lagging indicator of intellectual progress. Part of the reason that conventional politics can only be practiced marginally is because it demands “compliance with, acceptance of, and payment to its institutions,” as Samuel Edward Konkin III said.

Government enjoys the tacit approval of Americans to belligerently harass them and confiscate their wealth so the military and government-founded corporations can belligerently attack and confiscate the wealth of poorer peasants in other countries. There is nothing redeeming about it. It is extortion. But people put up with it because the devil they know is better than the devil they don’t know. We can cast a light on the possibilities of what freedom looks like by practicing it ourselves and leading by example. What could be more libertarian?

If we want to win, we’ve got to stop playing by the government’s approved rules. “If voting changed anything, they’d make it illegal,” as Emma Goldman quipped.

Instead of trying to free an entire country, we begin somewhere we have control — ourselves — making steady pragmatic progress individual by individual, and eventually social institutions will reflect these values we hold.

Condolences and Condemnation

Condolences and Condemnation

The life of Joseph Stack, the man the FBI believes flew his single-engine airplane into an office complex housing the Internal Revenue Service, ended in tragedy Thursday. It has been reported that at least one other man inside the Austin building was killed following the impact and many others were sent to the hospital to treat injuries.

To the loved ones of Mr. Stack and his victims, I offer my condolences. For Stack, I have nothing but condemnation for his acts. His brutality was needless and heartless.

I agree with Stack that what the IRS does is evil. Taxation is extortion.

What is easy to overlook is that the vast majority of people who advocate for government intervention into peaceful people’s lives do not see it that way. That’s just the way it is, they say.

Part of it is a lack of education. They have not read the books we have or heard the speeches we have. They have never studied agorism or read How I Found Freedom in an Unfree World by Harry Browne. And so they are still indoctrinated in government slavespeak.

Part of it as well is they believe that with enough government intervention and threats of violence, they can overcome circumstances they dislike in society. The only practical solution they see is violence. To offer voluntary and consent-based solutions to their problems seems so foreign them. In fact, in Stack’s suicide note of sorts, he said “[V]iolence not only is the answer, it is the only answer.”

So if the news reports are accurate and this man did do this, then he would have been acting under the same failed premises as those he intended to attack. He was a frustrated, desperate man who was willing to take his life rather than become a victim of the IRS any longer. But that is not how he will be remembered. He did not advance the cause of liberty one inch. He set it back. I’ve written before why violence is not the path to liberty.

For those of us whose highest political end is individual liberty, I believe one of our missions is to explain why violence and threats of violence are at best temporary antidotes to social ills — like heroin to an addict. Luckily, most everyone lives by the non-aggression principle everyday; it only takes making them aware of this and convincing them that the same principle applies to government too.

I would suggest reading Stack’s letter. An excerpt is below.

I can only hope that the numbers quickly get too big to be white washed and ignored that the American zombies wake up and revolt; it will take nothing less. I would only hope that by striking a nerve that stimulates the inevitable double standard, knee-jerk government reaction that results in more stupid draconian restrictions people wake up and begin to see the pompous political thugs and their mindless minions for what they are. Sadly, though I spent my entire life trying to believe it wasn’t so, but violence not only is the answer, it is the only answer. The cruel joke is that the really big chunks of shit at the top have known this all along and have been laughing, at and using this awareness against, fools like me all along.

He was obviously an intelligent and lucid man. He was angry at an unmerciful system that cripples ingenuity and compassion. He hoped to be a martyr in the revolt; but really, he is just a killer.

Image credit: News 8 Austin

We Are All Anarchists Now

Not only are we all anarchists now, there are abundant examples of anarchism working fabulously well. However, instead of opening anarchic relationships to everyone, governments have worked to abolish them from the private sphere and instead centralize anarchic relationships into the hands of politicians. I know it sounds strange that anarchy exists internally within government. My point here is to demonstrate that anarchic relationships are omnipresent.

Before beginning, I want to note that critics of market (or individualist) anarchism will point out that the market functions best with an impartial judicial system ruling on comprehensible law. I readily agree. Supporters of government also claim there needs to be a final body, such as the Supreme Court, which entails a supreme law that settles disputes once and for all. I don’t think it matters either way, especially since the political system does allow for disputes to continue in the legislative process even after the final court proceedings. I also don’t believe that a monopoly could provide an impartial judicial system or a comprehensible law. However, for the sake this discussion, I will concede all three points.

In “Two Treatises on Civil Government,” John Locke said there are two things wanting in a “state of nature”: “established, settled, known law” and “a known and indifferent judge” (emphasis in original work). To clarify, my understanding is that a government functions as a third party that provides ultimate dispute settlement within a given territory. Again, for the sake of this discussion, I will concede that an “established, settled, known law” exists. So without an “indifferent judge” whose decisions are commanded, by force if necessary, anarchy exists. For the sake of this discussion, I will concede that there is always sufficient force to command a judge’s decision. So really, the question is if there is an “indifferent judge” or not. (I’ve written a little here and here why I believe a market-based legal system is more able to provide equitable justice.)

The first basic anarchic relationship is between government and its citizens. The second is among different governments. The third is between citizens and foreign governments. The fourth basic anarchic relationship is among citizens of different governments. (More elaborate anarchic relationships can be read about here.) With this understanding, it becomes abundantly clear that government cannot eliminate anarchy; it is ever-present. Government can only centralize and transform it, many times with devastating effects.

The first form of an anarchic relationship is between the United States federal government and American citizens, for example. There is no “indifferent judge” when the federal government comes into conflict with individuals or groups of individuals. In those cases, the federal government prohibits a third party from resolving the dispute. It is helpful that a different branch hears the case, but that branch is appointed by and subject to the pressures of another branch of government responsible for enforcing the court’s decisions. Supposedly, that is the purpose of the constitution’s checks and balances — to bind the federal government, yet the federal government is also responsible for interpreting and enforcing its own limitations. Politicians also act in a state of anarchy with each other. There is no external agency that enforces rules among them, and so they exist in a form of “political anarchy” as opposed to natural “market anarchy,” according to Alfred G. Cuzan, who said:

[I]n their relations among each other, they remain largely “lawless.” Nobody external to the group writes and enforces rules governing the relations among them. At most, the rulers are bound by flexible constraints imposed by a “constitution” which they, in any case, interpret and enforce among and upon themselves. … In short, society is always in anarchy. A government only abolishes anarchy among what are called “subjects” or “citizens,” but among those who rule, anarchy prevails.

Since governments get to decide conflicts, they are so inclined to create conflict and then rule in their own favor, expanding their authority.

To give some state governments credit, there have been calls throughout the years to nullify particularly outrageous federal legislation. But those states can only do so much because the federal government controls the currency and can hand out goodies to those states willing accept expansive federal powers. In the United States, the federal government’s dispute authority is not as centralized as, say, North Korea, where the final authority is given to a single person. In effect, Kim Jong-il has abolished anarchy is North Korea for everyone but himself.

In the second form of anarchic relationships, the federal government also exists in a state of anarchy with all other governments around the world. There is no mandatory final arbiter of disputes between Canada and the United States, for example. If the Canadian government is accused of price fixing, the disagreement is settled by the World Trade Organization, per their membership agreement. Both governments had a mutually agreed-upon dispute resolution process. The United Nations is the closest thing to a world government, but even its membership is voluntary. The United States government could even opt out and no longer be responsible to funding it or abide by UN resolutions within its territorial borders so long as the federal government did not threaten to aggress against other UN member governments. National governments voluntarily cooperate by honoring visas and legal documents (like marriage certificates and drivers licenses) and ratifying all sorts of treatises. So empirically, there is no need for a world government for other governments to peacefully coexist. But of course, nations do not always interact so peacefully.

There are a couple of reasons why violence committed by governments have been so devastating. Mainly, it has to do with the imbalance of power between governments and citizens. That is the reason cited by many constitutionalists for their defense of the right to keep and bear arms, as recognized by the Second Amendment. Some of the greatest genocides in history have been perpetrated against an unarmed populace. If the theory holds, it would seem that the greater the imbalance of power the more deaths that have resulted, while greater peace would occur as a result of a more evened balance of power. In fact, the figures seem to say just that. In the past 100 years, 262 million people were killed by their own government. (I am using “own government” very loosely.) Approximately 35 million others were killed in combats with a foreign government. (It was unclear how many were civilians and how many were soldiers.) In a fourth form of anarchic relationships, foreign citizens are in state of anarchy with citizens of other nations. The largest foreign civilian murderer was Osama bin Laden, who allegedly orchestrated the death of 3500 people in part to demonstrate his grievances with the foreign military occupation of the Arabian Peninsula. Interestingly, nuclear-armed nations, which have nearly an equal capability for destruction, have never been in direct conflict. (That may be because the political leaders are in direct harm’s way.)

We can conclude that civilians face the greatest danger from their own government, where the balance of power is so astounding. Equally powerful governments are relatively peaceful toward one another. And civilians face the least danger from other civilians. To be fair, that could be because governments are in place to punish lawbreakers. That effect seems marginal, at best, because most people do not have reasonable access to a functioning judicial system for civil cases, nor do they have much confidence in police apprehending criminals who have victims.

According to the FBI, less than 20 percent of reported burglaries, property crime, theft, car theft, and arson are “cleared.” Keep in mind, that only includes reported crimes, and not all “cleared” cases result in conviction. Police can pin crimes on deceased or incarcerated suspects. Murders are cleared about 60 percent of the time, forcible rape about 40 percent of the time, aggravated assault about 55 percent of the time. Keep in mind, those figures include wrongful convictions based on faulty eye-witness testimony, unimpartial juries, fabricated evidence, and incompetent public defenders.

Citizens have no constitutional right to have their rights protected, which is allegedly the entire purpose of forming a government according to the Declaration of Independence. Thomas Jefferson wrote, “That to secure tnhese rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ….” The United States Supreme Court justices have ruled multiple times that federal, state, and local governments have no positive obligation to provide protection from “killers or madmen.” So if police do respond to a 911 call, it is solely out of the good will put upon by social pressures within the community or from commanders conforming to social pressures.

A second reason governments are capable of so much more violence is because those people supporting escalation do not have the full burden of paying for their military adventures, but can channel the benefits of their policies to themselves and their supporters. Basically, the costs can be socialized, and the benefits are privatized — like any other government program.

Successful Anarchism in Practice

The political process is a perfect example of how market anarchism can work even under the most crippling conditions. (I lifted this from Stefan Molyneux‘s video “The Proof of Anarchy.”) It is fairly well known that political contributors and lobbyists are some of the biggest recipients of special treatment by the government. Year after year, the government increases in size and power. Pork-barrel spending and corporate bailouts are never-ending. Upwards of 80 percent of Americans support greater restrictions on campaign finance contributions, so people have an innate sense that those in power are pretty rotten. Yet — even though politicians and political contributors cannot make written agreements, contributors can never have their agreements enforced by a functioning legal system, no one can be made aware of a politician’s broken agreement, the government will violently punish anyone who can be proven to have made such an agreement, and media reporters are paid good money to uncover such agreements — politicians are repeatedly re-elected about 90 percent of the time and lobbyists receive more and more handouts and exemptions from the law. Under the worst market conditions, lobbyist and politicians continue to work harmoniously. If lobbyists were able to publicize broken quid pro quo agreements or have them enforced by a legal system, then lobbyists would have an even greater effect. As it stands, politicians are not forced into compliance with their lobbyists; the only threat to the politician is that the lobbyist will support his or her opponent in the next election. You have the market process flourishing even in the face of significant obstacles.

Building Liberty

As I’ve tried to demonstrate, government cannot totally eliminate anarchism. Cuzan said:

We have shown that anarchy, like matter, never disappears — it only changes form. Anarchy is either market anarchy or political anarchy. Pluralist, decentralized political anarchy is less violent than hierarchical political anarchy. Hence, we have reason to hypothesize that market anarchy could be less violent than political anarchy. Since market anarchy can be shown to outperform political anarchy in efficiency and equity in all other respects, why should we expect anything different now? Wouldn’t we be justified to expect that market anarchy produces less violence in the enforcement of property rights than political anarchy? After all, the market is the best economizer of all — wouldn’t it also economize on violence better than government does, too?

One method capitalizing on the anarchic relationships formally denied to citizens is the practice of agorism, which emphasizes working within black and gray market industries as a way of building alternatives to government-imposed services. In that way, the government — a so-called necessary evil — will no longer be seen as necessary. In time, it will be seen for what it is, just evil.

Image credit: Joe Gratz, with Creative Commons license