For wherever violence is used, and injury done, though by hands appointed to administer Justice, it is still violence and injury, however colour'd with the Name, Pretences, or Forms of Law, the end whereof being to protect and redress the innocent, by an unbiassed application of it, to all who are under it; wherever that is not bona fide done, War is made upon the Sufferers, who having no appeal on Earth to right them,
they are left to the only remedy in such Cases, an appeal to Heaven.
John Locke, The Second Treatise of Civil Government, §20; At left: the Liberty Tree Flag of 1775
Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement,
and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.
Thomas Jefferson, First Inaugural Address, 1801
If once they [our people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves.
Thomas Jefferson, letter from Paris, 1787, boldface added
ἢ οὐκ ἔξεστί μοι ποιῆσαι ὃ θέλω ἐν τοῖς ἐμοῖς;
Aut non licet mihi quod volo facere?
Or am I not allowed to do what I wish with mine own?Matthew 20:15; see here.
Except for the review of the Soho Forum debate below, most of this was written before the election of Donald Trump and thus concerns issues and events during the Obama Administration. It does not need to be updated for the points made. Few of the issues have changed, although more attention could be paid to the questions of tariffs and immigration. They will be addressed in time.
While I regard myself as a 
libertarian in politics, quite a few libertarians would disqualify me. In many matters, I think they would be right. I may only be a "kind of" libertarian. I have previously recounted my journey into libertarianism, and I have also compared Libertarians to Republicans and Democrats, both pro and con. Here I want to focus specifically on the points that would make me an ideologically orthodox liberatarian and those that don't.
In the first place, most Republicans and Democrats would regard me as absurdly radical and "extremist." The simplest way to put it is this: Almost everything the Federal Government does is unconstitutional. Most Cabinet departments are unconstitutional, particularly ones like Education, Health and Human Services, Housing and Urban Development, Agriculture, the Environmental Protection Agency, the Food and Drug Administration, and, neither last nor least, the Drug Enforcement Administration. In most cases, what these departments do causes more harm than good anyway, and they simply become the means of distributing what used to be called "political patronage," i.e. rewards to supporters of the Party in power. That is apart from the habit of the EPA of crucifiying ordinary citizens when the EPA decides that a puddle on their land makes it a Federal "wetland," subjecting them to immediate prohibitions of use, "civil" fines, and criminal penalties. If the States had any gumption, they would arrest EPA agents and deport them from their States.
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| Der Wanderer über dem Nebelmeer, "ὁ Τηλεπατητικὸς above the Sea of Fog," 1818, by Caspar David Friedrich (1774–1840), Hamburger Kunsthalle |
Almost all Federal lands, which include the majority of the land in several Western States (80% of Nevada), are held unconstitutionally, particularly those administered by the Bureau of Land Management (BLM) but also including National Forests and even National Parks. The last State admitted to the Union where the Federal Government did not illegally retain public lands was Texas. For some reason, in 1850, Congress just decided that it could just keep any land it wanted from new States.
The Constitution specifies how the Federal Government acquires needed land from the States, and the lands held in States like Nevada are not held because of any Constitutional procedure. This was not done with any new States before 1850. Occasionally there have been complaints about this, but no State has been willing to make a real issue of it. The Supreme Court cannot be trusted, after all this time, to enforce the Constitution, so States must begin to practice non-cooperation, including the arrest of Federal agents. Since various Administrations have used power over Federal lands to punish States controlled by the opposition party, e.g. turning lands into parks or otherwise withdrawing them from economic use, without consulting the affected State, there is a history of misconduct in the matter. If Constitutional Government is ever to be restored, something must be done about this.
Almost all Federal spending and economic regulations are unconstitutional. When Alexander Hamilton told President Washington that the "general welfare" clause ("To lay and collect Taxes... to pay the Debts and provide for the common Defense and general Welfare of the United States") meant that the Federal Government could spend money on anything, he was sharply contradicted by both James Madison and Thomas Jefferson. Jefferson said that if such an interpretation were ever adopted, the Constitution would be rendered "nugatory."
But then that interpretation was adopted by the Supreme Court under (the threats of) Franklin Roosevelt (United States v. Butler, 1936, Helvering v. Davis, 1937); and today every rent seeker in the country is on the case of getting money out of Washington -- "Uncle Sugar." More than half of the Federal Budget now is consumed by just three programs, Social Security, Medicare, and Medicaid. None of them is Constitutional and, even if they were, they are gigantic Ponzi schemes that would land any private citizen in jail were they to try anything of the sort. The Democrats simply refuse to do anything about Social Security, and the Republicans are too intimidated to try themselves, although some of them know better. Even the 
Tea Party, created to protest taxing and spending, generally likes these programs -- despite the Supreme Court ruling that citizens have no rights to any of the "entitlement" money paid into their Social Security "account," while all the money paid may be forfeited to the Government if a person dies before retirement -- which is what Otto von Bismark, no fool himself, counted on when he thought this all up; but people in his day died around 50, not 70.
So the Government can only tax, borrow, and print money to pay for everything, with the National Debt over 31+ trillion dollars -- as the Federal Reserve creates money just to buy up much of the debt (i.e. debasing the currency, now called "monetizing the debt") -- and this doesn't even count the "unfunded liabilities," many trillions, that the Government has obliged itself to pay, without making any provision for where the money will come from.
What this will lead to is evident in Greece, where the economy and budget were simply destroyed by consistently socialist and irresponsible governments. When the Republicans have controlled Congress and sent more sensible budgets (although without "entitlement" reform) to Democrat Presidents, both Bill Clinton and Barack Obama vetoed the budgets, leading to a Government "shutdown," which in public opinion got successfully blamed on the Republicans -- park rangers actually threatened tourists for just taking pictures, because the (unconstitutional) parks were "closed."
However, since most Federal spending is unconstitutional, my response to a Government "shutdown" is: "That's a good start." And when we were reassured that "essential services" continued, one is left to wonder why we otherwise were paying for "inessential services" -- i.e. the gravy train at the government trough. Thus, if the Democrats want to hold the United States Government hostage to greater spending, I say, "Let them shoot the hostage!" Perhaps a headshot will result in something more honest and amiable, like Harrison Ford in Regarding Henry [1991] -- although in general I find the movie theme of "moral improvement through brain damage" offensive.
But even Alexander Hamilton didn't imagine that the Commerce Clause ("To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes") would be used to justify "regulating," i.e. controlling, all economic activity in the country, or even things that are not economic activity but that "affect" economic activity. Thus, the New Deal Court ruled that the Federal Government could prohibit a farmer from growing food on his own land, even if he only ate it himself. I used to tell my classes that this meant there could be a Federal Law against picking your nose, since, if someone saw you, they would lose their appetite, not buy food, and this would then "affect" interstate commerce. Don't laugh.
Violating Federal Regulations can bring criminal charges where the Government now doesn't even need to prove criminal intent. The purpose of Federal Law is therefore now simply to terrorize the citizens and smash them to the ground -- with the pretext of penalties as "deterrence" rendered senseless when, as James Madison said, "the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood" [Federalist No. 62]. And I am not alone in this. In a September 21, 2015, Gallup Poll, "almost half of Americans, 49%, say the federal government poses an immediate threat to the rights and freedoms of ordinary citizens." Among Republicans, this was 65%; among Democrats only 32%. In other words, Democrats like being sex slaves of the State -- so it can f**k them any time it likes.
When a couple of ranchers in Oregon did a controlled burn on their land, a prudent fire control measure, and accidentally burned a few acres on Federal Land, they were charged with terrorism -- something the jury actually was not told (which is not unusual in the modern railroad court) -- and sentenced, without proof of criminal intent, to a mandatory five year Federal sentence, which the trial judge himself said was unjust and didn't want to impose. He didn't, but then he was reversed on appeal; and the ranchers, who had already been released, returned to custody. The trial judge, of course, should have thrown out the case, with prejudice, before it got as far as trial. He should have known that it would be too late to have second thoughts at sentencing. President Trump pardoned the ranchers. But justice delayed is justice denied.
Since the Government now sees American citizens as threats to its power, i.e. as enemies ("Government of the government, by the government, and for the government" -- my suggested motto for the Democratic Party), it is not surprising that "progressive" politics is hostile to Americans owning guns. Even Machiavelli advised the wise Prince to arm his subjects. But our rulers are now no ordinary princes. The thought of an armed America resisting the Government is terrifying to them; and with victim disarmament, called "gun control," the Government wants to be sure that citizens will be unable to defend themselves against lunatics, terrorists, criminals, or the DEA SWAT team that has gone to the wrong address.
But America, as Americans should know but probably do not, is supposed to be armed. Since 1903, Congress has failed in its Constitutional duty of providing for a "well regulated Militia," since a "Militia," to all the Founders, meant the armed body of the citizenry. What Congress did in 1903 was create the National Guard, almost certainly to prevent Black people in the South from constituting a Militia to resist the terrorism of Segregation and lynchings. The "progressive" left would be horrified to learn that the motivation for the creation of the National Guard was racism. But I bet they do know it. And they have largely succeeded in their purpose -- while smearing anyone who disagrees with them on anything as racists themselves.
Armed citizens, despite enough Americans owning guns to frighten the progressives, are nevertheless presently no match for the military force of the Government -- whose Standing Army was something that no Founder of the country wanted to allow. But the Founders never heard of police forces either, whose original mandate, that they operate unarmed, is now entirely forgotten. To protest the conviction of the Oregon ranchers, some characters occupied a Federal Wildlife Reserve in Oregon. They got little sympathy from the public, local politicians, or even the unjustly imprisoned ranchers. This is what anyone is up against who thinks that the Government should be resisted in the most direct ways. They become kooks (and, of course, racists). Thus, the States, which are continually trampled and raped by the Federal Government, do almost nothing to assert their Constitutional powers, or to protect the rights of their citizens from Federal tyranny. Everybody seems to think that this is the way its supposed to be. And we get our "benefits."
While libertarians might affirm most of these points, to which I might add, by the way, objections to anti-discrimination laws and the minimum wage (etc.), one need not be a libertarian to go along. A proper Jeffersonian would agree with me pretty much right down the line -- with a Constitutionalism that does seem to be promoted by Hillsdale College and some conservative commentators, like Mark Levin (cf. The Liberty Amendments, 2014). One of the most bitter ironies in all of American history is that the Constitution was destroyed by the political Party, the Democrats, founded by Jefferson himself -- whom it celebrates every year (at the "Jefferson-Jackson Dinner"), as though he (or Andrew Jackson) would now give them the time of day. Roosevelt put Jefferson on the Nickel and built the Jefferson Memorial. Somebody obviously doesn't know what the man (or Andrew Jackson) thought. But, since he owned slaves, he was a racist (actually, he was), so we don't need to worry about whatever he thought anyway. The Jeffersonian nature of the Democratic Party is joke; but the present anti-American nature of the Democratic Party, and the supine and "me-too" nature of the Republican Party, are threats to the freedom of all Americans, and to the future of America.
On all these points, libertarians would join a lot of conservatives -- except for the many Republicans and conservatives who have made their peace with the New Deal and the modern Absolutist State. Apart from that, conservatives generally would disagree with libertarians on some social issues. The Federal Government has no business telling me what drugs to use, for whatever purposes. The "War on Drugs" is a war on me; and the way it is generally waged, gunning down innocent citizens in their homes and throwing hand grenades into baby cribs, it is a disgrace. At the same time, there are libertarians opposed to abortion. I find myself respecting that viewpoint, since an abortion does indeed kill a being, a living thing, and a human being. However, I am not a Christian; and I also respect, oddly enough, the practice of the Greeks and the Romans in exposing infants. The principle of Roe v. Wade is privacy, and I am willing to accept that on the principle that in its job of righting all wrongs, the Government has only a limited power to intrude into the bodies of the citizens. If a mother wishes to kill the child in her womb, especially if the child was conceived by rape or incest, I think that the problem is only one of her own karma. Even God killed the child of David and Bathsheba to punish them [2 Samuel 12:14].
When it comes to "gay marriage," I don't think it is the job of Government to define marriage in the first place. Marriage, of whatever sort, in whatever religion, is a matter of contract; and it is the job of Government to enforce contracts, with the qualification that contracts qualify as lawful contracts, i.e. marriages cannot be contacted for legally incompetent children or for non-consenting partners, etc. This means, as many have already perceived, that "gay marriage" abolishes any justification to prohibit polygamy -- except, of course, where this involves, as we have seen too often, under-age girls. Thus, the only olive branch I can offer to conservatives is that it is not the job of Government to endorse "gay marriage" (or polygamy), or to penalize people under anti-discrimination laws who refuse, out of conscience, to provide services for gay (or polygamous) "weddings." Since (the politically sanctified) Islam allows polygamy, we can expect that any day now that the Democrats and progressives will buckle like a broken chair to legalize it. Bill Clinton could have just married Jennifer Flowers and Monica Lewinsky, or kept them as concubines (Islamic law may require them to be slaves in that case -- probably OK with Bill).
ὁ κλέπτης οὐκ ἔρχεται εἰ μὴ ἵνα κλέψῃ καὶ θύσῃ καὶ ἀπολέσῃ.
The thief comes only to steal and kill and destroy...John 10:20
Despite my being way out of the mainstream in most of these political positions, libertarians would probably regard me as not way out enough to be a proper libertarian. One way I can express this is that I am more a Milton Friedman and F.A. Hayek kind of libertarian than an Ayn Rand and Murray Rothbard kind of one. For those who do not know the literature, however, this isn't going to explain much. Instead, I can put it this way. The desire of a Jeffersonian for Constutional Government does not go nearly far enough for the proper Rand-Mothbard libertarian. Instead, you need "The Pledge." This is an axiomatic principle of morality that is cited by many libertarians and is used as a kind of Profession of Faith for people joining the Libertarian Party. But it is morally and politically deficient in many ways. Indeed, a common and reasonable accusation against libertarians is that they are really anarchists -- an impression reinforced by the popularity of Robert Nozick's Anarchy, the State, and Utopia [1974]. While someone like Ayn Rand, or Nozick, doesn't actually seem to be a full on anarchist, it is a little hard to see how their principles -- like The Pledge -- preclude it -- indeed, there may be a similar problem with John Locke -- and there are plenty of genuine libertarian anarchists around. But any form of anarchism is, I am sorry to say, preposterous.
The Pledge is simply that one will not initiate the use of force. While there is a lot about this that is appealing, it must really be all but buried in qualifications, even to cover issues that libertarians agree on. On other issues, undetermined by the Pledge, libertarians dissolve into often bitter disagreement. The idea that the Pledge is sufficient to resolve moral or political issues is thus, to the extent that anyone really believes anything of the sort, ridiculous.
One problem is property rights. Libertarians don't want people stealing their stuff. But classical anarchists, like Proudhon, said that property was theft (La propriété, c'est le vol!). And if I break into your house, when you are not there, and take your stuff, how is that initiating force against you? Oh, you say, your stuff is you. So we need an extra premise there in the Pledge, not to initiate force against me or my stuff. So what counts as my stuff? Well, in fact, it has taken centuries of law to pin that down. And libertarians disagree. Some of them don't like "intellectual property," i.e. patents and copyright, and don't think it is theft to take your ideas, inventions, or writings and make money off of them -- perhaps rendering you unable to earn a living from your creative work. Miguel de Cervantes died in poverty because he could not stop pirated editions of Don Quixote. Most people would regard that as unfair, which is why the Constutition itself affirms patents and copyright.
Or, some libertarians -- cf. Albert Jay Nock (1870-1945) in Our Enemy the State [1935] -- don't think you have the right to too much stuff. "Georgism," after Henry George (1839-1897), is the economic theory that you only have the right to as much property as you directly make use of and that much in the way of resources must be shared. The issue was mainly about land, when a lot of economists thought that land was the basis of wealth. Not only is that not true, and not only is the principle pretty ridiculous, but how much is "too much" and how much land, and in what ways, is going to be something that you can directly use, are going to be matters of endless dispute. And, in fact, the issue has never been disputed in practice, since "Georgism" has never been put into practice -- and the great wealth of the "Robber Barons" was usually not generated from land anyway, but from industry and finance. The closest we have gotten to "Georgism" in political history is that some countries have confiscated land from large land owners and distributed it to the poor. In general, this has never made the poor particularly richer, since there is not much future in subsistence agriculture; and to become wealthy, a farmer needs to acquire, well, a lot more land -- which is going to come from the poor farmers who otherwise don't know how to improve their condition. Jefferson himself wanted a nation of sturdy yeoman farmers; but he himself owned a large plantation, with slave labor, which he succeeded in bankrupting. The whole place and everything in it, including the slaves, had to be sold at his death, to pay his debts.
So, for all the importance of property rights for libertarianism, the Pledge provides nothing to ground any property rights, let alone define them with any precision or resolve any disputes. But this pales besides other deficiencies. Thus, it is an ancient principle of the Common Law, which is something that many libertarians respect (because they think it could operate in an anarchistic legal system), that doing something that endangers others, even if it doesn't cause any actual harm, can be unlawful. The classic example of this is drunk driving. A drunk driver may actually cause no one any harm. But if an officer spots him weaving around, this is sufficient cause for a traffic stop and a sobriety test. Failing the test can result, not just in a citation, but in an arrest and booking, with major legal consequences. Libertarians are offended at penalties for things that have caused no harm. However, a habitual drunk driver does pose a serious threat to others, and it is only prudent that such person be, shall we say, discouraged from continuing behavior that can easily result, and often does, in serious injury and death to others. Some years ago, there was public outrage that drunk drivers, who had been arrested many times and received only nominal punishment, often ended up killing people in appalling accidents. This led to the formation of Mothers Against Drug Driving (MADD) and a general tightening of drunk driving laws.
The Pledge is no help in this. But if someone is doing something that directly endangers you, and you can preclude any harm by initiating force to stop them, this is sensible, prudent, and fair. If their behavior is foolish or irresponsible, they really cannot expect that their actions are going to be respected. Indeed, if the foolish or irresponsible behavior is of morally incompetent persons, such as children, the senile, or the insane, someone has a positive moral duty to stop them. This may fall to relatives or to public authority, but the responsibility must be assumed by someone. The Pledge is no help in such matters. Meanwhile, with drunk driving, some objections to the tightened drunk driving laws are reasonable. While we cannot countence the libertarian principle of "no harm, no foul," it nevertheless remains true that drunk driving without harm is less wrongful than drunk driving that causes injury. Also, driving while less drunk is less dangerous and therefore less wrongful than driving while more drunk. But the drunk driving laws do not distinguish between less drunk and more drunk, and serious sanctions descend on people who may be first and mild offenders and not at all habitual or perilous offenders.
Thus part of the innovation of the law was that the Federal Government (extraconstitutionally) required the States to lower the "legal limit" from 0.10% to 0.08% blood alcohol (and raise the drinking age from 18 to 21, even though the drinking age in, say, New York had always been 18). If the original complaint was that drunk drivers were being given nominal penalties, lowering the legal limit was entirely irrelevant and gratuitious. If the argument now is that even so moderate intoxication as 0.08% still degrades one's driving ability, this again is irrelevant to the original complaint; and it seems designed to catch people returning from parties who are not at all disposed to drive the wrong way on roads or commit the other spectacular misconduct that habitual and severely drunk drivers are often found doing. Even very moderate alcohol consumption may somewhat degrade one's reflexes, etc., but most people are able to compensate for this by driving more carefully, while dangerous drunks characteristically drive less carefully -- and all sorts of innocent activities, like conversations, worries about taxes or debts, etc., similarly degrade one reflexes. The driver who realizes he may have had a little too much to drink is likely to concentrate to the exclusion of other such things -- I know I did driving home from (Austin's) Scholz's Beer Garden (or the Scholz Garten) in 1976. Unfortunately, modern people often seem to think that ignoring the road in order to engage in text-messaging is quite reasonable -- this has even caused horrible train wrecks. The mildly intoxicated party goer is unlikely to make that mistake.
If libertarians wish to protest the overkill and wrongfulness of the new drunk driving laws, it is not going to help if they actually want to abolish such laws altogether. People tend to see that as discrediting libertarian principles, as indeed it does discredit the Pledge as a sensible moral rule. The ultimate reductio ad absurdum of the libertarian "no harm, no foul" principle may be a question I actually saw a Libertarian political candidate asked in an election forum, whether it would be all right for his neighbor to possess nuclear weapons. The candidate lamely responded that he had no need for nuclear weapons. But a nuclear weapon next door, even if only in the hands of an eccentric (e.g. the physicist Sheldon Cooper of The Big Bang Theory) rather than a terrorist, is many levels of danger above the occasional drunk driver. Yet if a nuclear weapon were built or acquired by an eccentric, it is not clear that this is much more reassuring than if he were a terrorist. Who knows what he thinks he's doing. To the proper libertarian, of course, it doesn't matter what he thinks he's doing, he has a right to do anything as long as it isn't actually hurting anyone.
This sounds like John Stuart Mill's Principle of Liberty, which is rather older than the Pledge. You have the right to do whatever you want as long as you aren't harming anyone, or as long as you respect the right of others to exercise the same liberties that you do. The Common Law principle of dangerous activities again seems to drop out here. But there is a proper point to be made. If the neighbor is not a terrorist, and merely has his own innocent but eccentric reasons for possessing nuclear weapons, we may want public authorities to confiscate his weapons, but it is not clear how this is morally wrongful. Whether the eccentric is endangering others in the same way as a drunk driver is open to question. Sheldon Cooper may actually know what he is doing, perhaps even better than the technicians at Three Mile Island or Chernobyl. Yet, since this is hard to judge, it may still be proper to confiscate his bombs. Has he then commited a crime? This is an important general question about the law.
Of the many principles of Natural Justice and the Common Law that modern law ignores and violates, the difference between mala in se and mala prohibita is fundamental. I have addressed this elsewhere, but the distinction can be briefly rehearsed. Mala in se, "evils in themselves," are natural evils, such as already exist in the State of Nature. This means assault, murder, rape, theft, fraud, etc. The first thing that positive law can be expected to do is condemn such things, as they are generally condemned in the law codes of diverse nations and cultures. Mala prohibita, "prohibited evils," are wrongs that do not exist in the State of Nature but are artifacts of government and legislation. The drug laws are pure mala prohibita, although one might say that the prohibition of wine (and so other alcoholic drinks) in Islam is of this nature also. Since mala prohibita are not wrongful in any traditional moral sense, people tend to take them less seriously. This poses a problem for legislators, politicians, and judges, who are offended that their handiwork may not be taken seriously enough by the citizens whom such laws purportedly benefit. And since things like drugs laws, or prohibitions of gambling, are commonly and even generally ignored, the only solution that these worthies can imagine is to increase the penalties until people take the laws seriously enough. Thus, a recent offender was threatened with life imprisonment for the possession of some brownies baked with marijuana, while persons convicted of murder historically may serve five years or less in prison. The grotesque injustice of this is usually evident to all -- except for the legislators, politicians, and judges who are responsible for such a legal regime. They seem to like it just fine. Until, of course, they or theirs get caught in the web.
Thus, it is characteristic that the penalties for mala prohibita actually end up being greater than those for mala in se, despite the all but self-evident principle of natural justice that this is the opposite of what is right and proper. But what allows this sort of thing to happen is another abuse in modern jurisprudence, which is the principle of judicial positivism, i.e. that there is no Natural Justice and that the only "justice" that exists is positive law and the practice of the courts. In other words, whatever the law is and whatever the courts do, that's justice. I think that anyone who believes this is a clear and present danger to the life and liberty of us all. And the idea that the Government is going to smash your life just because you don't take their mala prohibita seriously enough is a principle of tyranny, not of justice. Indeed, there is a venerable name for it. "Draconian" penalties are those absurdly out of proportion to the offense -- named after the Athenian legislator Draco, who mandated death for most of the offenses in his law code.
Respect for the nature of mala in se requires, not the libertarian principle of "no harm, no foul," but a principle of proportionality in justice, namely that pentalties be proportional to the wrongfulness of the offense. Thus, forms of drunk driving less dangerous than others, i.e. with less intoxication and without habitual offenses, are less dangerous and less wrongful than those forms involving more intoxication and habitual offenses. If the original complaints about drunk driving were nominal sentences given to habitual offenders, this addresses the substance of the complaints. However, if the political desire is to smash the lives of people just to convince them of the political seriousness of their offense, this is wrongfully draconian.
Now, if Sheldon Cooper builds a nuclear weapon in his basement just out of curiosity, I am going to want to see it confiscated. But I don't think he has done anything wrong. If he does it again, I think it is reasonable that this be a malum prohibitum and there be some penalty for it. Not life in prison. A proper response, indeed, might be that someone like him be hired by the Government and given a job doing what he obviously knows how to do. While this may not sound like a serious suggestion, there is precedent, as criminals have often been offered military service in lieu of imprisonment, or computer hackers have been recruited by the CIA or NSA, in lieu of imprisonment.
What all this should end up meaning is that many evils of modern government do not require the remedy of the Pledge, or even Mill's Principle of Liberty, but actually just some principles of justice that have been around for centuries -- which is why they can be expressed in Latin -- that most people will understand and support, even if they do not know the terminology. It is extraordinary how a Constitutional Republic like the United States, founded on principles of Natural Rights and Natural Justice, ends up routinely violating requirements for criminal intent, proportional pentalies, the trial by jury, and other simple and obvious requirements of justice. The explanation for it is certainly the penchant of Government power to feed and grow on itself, promoted by those who want that power for themselves or who simply want to live at the expense of others. The vindictiveness of authority against those who don't take its arbitrary or irrational laws seriously is no more than a sense of lèse majesté -- the crime of not respecting the sovereign. But in America, the people are sovereign, not flunkies at the IRS. Cops, prosecutors, and judges terrorizing citizens are the ones guilty of lèse majesté.
Another area left undetermined by the Pledge is just who are the "others" against whom we should not initiate force. The prima facie answer is "rational beings," of whom we only know of human beings (yet). Rational beings will have the same understanding we do and can grasp the nature of the same rights and duties. On the other hand, "animal rights" activists believe that animals, i.e. sentient beings, have rights too. This is correct. However, the activists tend to think that animals have the same rights as rational beings. Few people accept this; and, as a matter of fact, animal rights activists don't really think so either. Lions are not given the right to roam freely in the crowd at musical concerts. They might eat someone, and they will disrupt the music. While Leonard Nelson believed in full animal rights, he was careful to distinguish the rights from the duties that animals are incapable of understanding or observing. For the rest of us, it is not clear how beings who are subject to no duties are therefore to be regarded as possessing the same rights. And since dangerous animals cannot be allowed to wander free among humans, it is obvious that in fact they are not.
The key point, of course, and what animal rights talk really comes down to, is whether animals have the right not to be eaten as food. Of course, they don't, since they are commonly eaten by other animals. But we, who are conscious of duties, perhaps do not have the right to eat them. The Roman jurists would say, of course, that eating the animals we raise or hunt is simply the jus gentium, the practice of nations. And indeed, there really are no vegetarian nations, althrough various places, to a greater or lesser extent, practice vegetarianism for religious reasons. This mainly involves Hinduism, Buddhism, and Jainism; but only the Jains believe that even lay persons should all be vegetarian. Otherwise, it is a practice that is a feature of withdrawl from the world, as it is also in Jainism itself. It is just that Jainism is more rigorous.
I do not need to decide here about animal rights. The point is that I could not decide given the content of the Pledge, or of Mill's Principle of Liberty. Extra premises, or axioms, are required. So libertarians are happily carnivores, vegetarians, vegans, or whatever. This is only a problem if we think that the Pledge is sufficient to the determination of all moral duties. In those terms, as we have seen, vegetarianism is the least of its problems.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.James Madison, The Federalist No. 51
The principal evil of American politics in the present day is that the Government, as Madison would put it, is not obliged to control itself. Instead, a substantial body of the citizenry actually wants an uncontrolled, unlimited, and absolute government, hoping, again, either to have its power for themselves, or to use it to live at the expense of others (or both). Thus, as Jefferson said, it is the way of government to increase and of liberty to retreat. This is sometimes candidly admitted, as when Congressman Pete Stark (D-CA) told an audience that the Federal Government can do anything.
The complacency of many Americans is often reflected in the naive and idiotic assertion, which I hear all too often, that, "We are the government." I would like to see the reaction of someone who says this if the DEA happens to kick down their door in the middle of the night, shoots their dog, and then has agents literally stand on them (and their children), all without displaying the search warrant that authorities used to be required to display before entering any house. Hey, buddy, that's your Government in action! So you are only doing it to yourself -- the way that Trotsky argued that slave labor was just fine, because it was only the workers enslaving themselves to do the workers' own Revolution. But we need to have no-knock searchers, or those hippies might flush their dope down the toilet. Can't have that, or we couldn't destroy their lives to save them from drugs. So, as we have seen, we can imagine many Democrats telling the DEA agents, like Moon Zappa (pretending) in Valley Girl, "Hurt me, hurt me!"
With libertarians, the slippery slope towards anarchism is paved with the principle that all relationships, at least between competent persons (although some libertarians think that the insane are competent), must be voluntary. Thus, taxation is wrongful. You should only pay for government services you want, and otherwise the government has no right to take money from you. This, of course, has never happened, even when there was no money. Egyptian tax collectors confiscated grain as taxes. But what is involved here is a good question, which is the basis of the authority of the State. Is there some reason that the State can morally command our obedience? Does the State really exercise what is called a "monopoly of force"? And by what right would it have such a monopoly?
Traditional justifications for the authority of the State have mostly been bogus. It used to be the authority of God, but the authority of God simply meant the authority of the Emperor, King, or Church -- which led to a falling out over which of those really had it, and how. And this was all rejected in the Glorious Revolution (1688), although the "Divine Right of Kings" persisted in France until Louis XVI lost his head. But, theologically, Socrates already decided that the gods loved what was right because it was right, not just because they decided to love it. This problem persists. After the Glorious Revolution, Locke found the authority of government in a "Social Contract," whereby the citizens contract with the Government to do certain things, i.e. protect natural rights. It ended up there were two problems with this. One is that the contract was a fiction. There never was such an agreement; and even if there was, by the original contractors, subsequent generations of citizens are not asked whether they want to sign on or not. Without any confirmation of their willingness, the Government expects them to obey nevertheless.
The bigger problem is when the Government violates its trust, i.e. failing to protect the things that notionally it is supposed to protect, and where officials may actually have sworn to uphold a particular contract of government, like the Constitution. The argument of the Declaration of Independence, like that of Locke, is that when a Government violates its trust, it loses its legitimacy and authority. Unfortunately, the United States Government not only has gone far down this road of faithlessness to its trust, but it has the gall to pronounce through its authoritative Mouthpiece, the Supreme Court, that the Constitution is whatever the Government says it is, and so the Government has violated no trust if its says it has not, regardless of what it has actually done. Politicians are happy to go along, and most citizens don't realize what has happened. On the playground, this sort of thing is called, "Heads I win; tails, you lose." In other words, it is sheer, self-serving sophistry. But a supine American public accepts it, which means, Jefferson worried, their "spirit of resistance" is long dead. This is why Madison already said, "A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." Those "auxiliary precautions" have long broken down and failed, as, indeed, both Madison and Jefferson expected they eventually would.
Thus, in an important way, our worry about the source of the authority of government is moot. The authority of the Government now is simply force, with enough clueless voters going along to allow this to happen and continue. Which reminds me of another old saying, that people get the kind of government they deserve. Perhaps you deserve the kind of Government that shoots your dog. And it should remind us of Benjamin Franklin, who answered a question about the form of government written into the Constitution: "A Republic, if you can keep it." We have not kept it. We have lost it to demagouges, lairs, sophists, thieves, and tyrants. And it is our own fault and our own folly -- our birthright has been sold for a mess of pottage [Genesis 25:31-34].
At the same time, for the future, if liberty and justice are ever to be restored and preserved, we might like some answers. Libertarians, of course, may see the answer as the abolition of government, so that the future will be a utopia of anarcho-capitalism. Unfortunately, the first gangster who puts together a private army would be the end of that. And if the innocent and righteous put together their own private army, then we get all the joys of civil war. Should that war be won by some reasonably decent party, the question arises of whether the army should be disbanded or not. If so, then the threat looms of the whole process starting all over again. So we might like to retain a "Well Regulated Militia," and an Authority to govern it, with helpful things like law courts and legislation. But what authority does that Authority then have? Aye, there's the rub.
The key may be in a common saying, that Government is at best a necessary evil, at worst an intolerable one. "Government, like fire, is a dangerous servant and a terrible master." These sentiments and aphorisms are generally attributed to George Washington, but I have been unable to verify their provenance. Nevertheless, they are worthy of Washington, or of any great statesman and leader. I would direct our attention to the phrase "necessary evil." An evil may be necessary, but that still leaves it an evil. In what sense might government remain an evil? Of course, the supine sex-slaves of government, Statist submissives and Hegelians like Garry Wills, Robert Bork, or Chuck Lorre, are offended that we should think of government as a "necessary evil" rather than a glorious passionate lover who delivers constant orgasms of joyful "benefits." Much as they may enjoy their slavery, they have no right to impose it on their fellow citizens, who may take the "Blessings of Liberty" seriously.
But I think they are on to something, and that we must take government as an "evil" seriously. The clue comes from Machiavelli:
It must be understood, however, that a prince...cannot observe all of those virtues for which men are reputed good, because it is often necessary to act against mercy, against faith, against humanity, against frankness, against religion in order to preserve the state......e, come di sopra dissi, non partirsi dal bene, potendo, ma sapere entrare nel male, necessitato.
As I have aleady said, he must stick to the good so long as he can, but being compelled by necessity, he must be ready to take the way of evil... [The Prince, Daniel Donno translation, Bantam Books, 1981, p.63; Italian text, Il Principe, Nuova edizione a cura di Giorgio Inglese, Giulio Einaudi editore s.p.a., Torino, 2013 e 2014, p.126]
The State as a "necessary evil" thus has two parts. What is evil is the abridgement of the voluntary will of the citizens. What is "necessary" is that this is done for very precise purposes, in general terms to "preserve the State," per mantenere lo stato [ibid.], but specifically to preserve the State for the Lockean and Jeffersonian purposes of maintaining natural rights and sustaining the institutions to do so, namely the courts, the military, and such mechanisms of government that constitute Madison's "auxiliary precautions." For neither Madison nor Jefferson thought that the form of a Republic would automatically sustain itself. "Paper barriers" to tyranny would eventually fall to busy tyrants (e.g. FDR). Instead, force must be balanced by force and interest by interest. Thus, in The Federalist Hamilton explained that the States would hold the Federal Government to the Constitution, but then he advised Washington and Adams to ignore the States; and the attempt of Madison and Jefferson to create a precedent of States nullifying unconstitutional Federal Laws (like the outrageous Alien and Sedition Acts) was both ineffective and seemed to be unnecessary as soon as Jefferson was elected Presient in 1800. Letting this go was later recognzied by Jefferson as a serious mistake. No institution was ever created to prevent the Supreme Court, as it began to do under John Marshall (vengefully appointed by the lame duck John Adams), from simply certifiying Federal actions as acceptable, regardless of the rights "retained by the people" according to the Ninth Amendment or the "powers... reserved to the States respectively, or to the people" by the Tenth. Thus, at the birth of the Republic were the seeds of its destruction, tragically and ironically even perceived as such at the time. The Authority created explicitly to protect the rights of the people is now used on a daily basis to terrorize them and loot the wealth of the nation -- even as "public education" teaches the vulnerable, credulous young that this is all right and proper.
...che non si debbe mai lasciare seguire uno disordine per fuggire una guerra: perché la non si fugge ma si differisce a tuo disavvantaggio....that one should never permit a disorder to persist in order to avoid war, for war is not avoided thereby but merely deferred to one's own disadvantage...
Niccolò Machiavelli, The Prince [Daniel Donno translation, Bantam, 1981, pp. 20], Italian text, Il Principe, Nuova edizione a cura di Giorgio Inglese [Giulio Einaudi editore s.p.a., Torino, 2013 e 2014, p.24]
Je Maintiendrai
"I will maintain," the motto of William the Silent of Orange and of the House of Orange and Nassau.
It may be that a system of Checks and Balances can never be perfected to prevent the decay of Republican Government such as we have witnessed in the United States. An anarchist might even argue that a cycle of private armies and civil war is preferable, as now it might actually take civil disorder and insurrection to correct the damage that has been done to our Great Republic. Unfortunately, many States once rose in Rebellion against the Federal Government for the morally bankrupt cause of perserving slavery -- one of the worst causes ever, Ulysses S. Grant said -- and so squandered all the moral capital that the States might have possessed for other causes, such as to resist protective tariffs, or the New Deal. Or we may be so undone as to fall to a foreign enemy, perhaps even some form of nuclearized Militant Islam.
Which brings me to the next problem. Harry Browne, twice the Presidential candidate of the Libertarian Party, and a perfectly nice guy, said that the United States was attacked on 9/11/2001 because we had not been minding our own business. It was some sort of reasonable or righteous payback for American intervention in the Middle East. However, Osama ben Laden was angry about several things, including the Jews, but his principal complaint about Americans was that American forces were in Saudi Arabia, whose Islamic purity was thereby violated. But American forces were in Saudi Arabia because in 1990 Saddam Hussein had invaded and conquered Kuwait, and the Saudis desperately appealed for help in case Hussein decided to continue on his conquests. Before long, George H.W. Bush put together a coalition of Arab and European states to throw Hussein out of Kuwait, which was done rather easily. Since the decision was made not to overthrown Hussein, American forces remained in Saudi Arabia and Kuwait to police the cease fire with Iraq and to prevent Hussein from massacring more Shi'ites and Kurds, although he was able to put down, with great slaughter, a Shi'ite uprising. The wisdom of this restraint has been questioned ever since.
Libertarians like Harry Browne, however, seemed to think that Hussein conquering Kuwait was none of our business. The libertarian CATO Institute came out against the war, despite losing major donors over it. One letter to the Libertarian Party national newsletter even claimed that Hussein had a right to Kuwait because it was "historically" part of Iraq -- an Iraq, of course, that had not been an independent state since the fall of the Abbasid Caliphate in 1258 AD. I suspected that the writer was probably otherwise one of the libertarians who viewed the right of the South to leave the Union, slaves and all, as beyond challenge -- history and slavery be damned. There was likely a bit of convenient double-think there. On the other hand, whether or not it is proper for the United States to belong to the United Nations, the fundamental purpose of the UN, if anything, was to prevent the sorts of invasions and conquests that had recently been witnessed during World War II. In those terms, the United States had assumed a contractual obligation, at least, to protect member states of the UN, like Kuwait, from invasion and conquest by their neighbors. Fortunately, there hasn't been a whole lot of this going on since World War II, and the UN worked more or less as it was supposed to when South Korea and Kuwait were invaded. But one of the worse failures of the UN has been the recent invasion and conquest of parts of the Ukraine by Russia, which both the United States and Britain were otherwise treaty-bound to prevent, but which has been more or less tolerated by the UN, NATO, and by the clueless Obama-Kerry foreign policy team. This is disgraceful, especially when it became plain that the eagerness of Vladimir Putin to "help" in the war against the Islamic State was no more than a pretext to prop up his Syrian ally.
For all the distaste of libertarians for balance of power politics, foreign "intervention," and, it seems, the rescue of South Korea, Kuwait, or South Vietnam, the actions of the most libertarian presidents stand as poor precedents. The man who may have been the most libertarian politician in history, Thomas Jefferson, nevertheless sent Marines and the Navy to Libya, without a declaration of war -- and indeed while Congress was not in session precisely to avoid arguing about it -- to attack Muslim piracy -- the United States and Jefferson himself having previously been informed that Muslims have the right to attack the ships of peaceful nations and to enslave their occupants just because they were infidels. In recent history, we have been hearing these sort of things again; and indeed, the Muslim pirates are back, operating from Somalia, with similar outrages -- complicated by the failure of commercial ships to arm their crews in any way.
After the touring sailboat of an American couple was captured by pirates in the Gulf of Aden, and they were killed, one of those letters to the Libertarian Party newsletter, as we might expect, asserted, not that the United States or NATO should be patrolling the seas for pirates, but that the American victims should have known to stay away from the area. So, presumably, protecting the sea lanes is a foreign "intervention," and the policy of the United States Government should be that American ships and citizens at sea are on their own. Of course, what libertarians want to allow is a private navy that would protect American shipping. Whether such a navy would limit its activities to protection is a good question. The private navy (and army) of the British East India Company engaged China in the Opium Wars. I'm not sure whether libertarians would see that as proper. They certainly would not have contemplated coming to the aid of China, however distressed it might be. But they wouldn't be too upset, perhaps, that all that the Company wanted to do was sell opium in China, which the reactionary, drug-warrior government prohibited. Not an issue to worry libertarians very much.
But it was an ugly business, and something for which the East India Company or, certainly, the British Government was never held responsible. Meanwhile, the next Jeffersonian President, James Madison, declared war on Britain in 1812 because of the spill-over of the long Napoleonic Wars in Europe, perhaps also hoping to "liberate" Canada, where Loyalist refugees from the American Revolution really didn't want to be "liberated." That didn't work out. But Madison also committed the United States to interventions in Latin America because of the Monroe Doctrine, to prevent European powers from recolonizing the newly independent states in Central and South America. With a bit of a reach, this led to the Spanish-American War, when the Hearst newspaper whipped up sentiment because Spain had been massacring Cubans who were in rebellion. That led to American acquisitions in the Pacific, including the Philippines, where the embarrassing fight against Filipino rebels turned out to be nastier and more difficult than the war with Spain. Libertarians might have a point about that one.
However, Jeffeson and Madison clearly had robust ideas about the scope and use of American power, at a time when American power actually didn't amount to much. But it is not clear that the doctrinaire libertarian would regard anything they did as proper. There are similar questions about the next time a general war in Europe was spilling over. If Madison declared war on Britain in 1812 because the Royal Navy was impressing American sailors, the German use of unrestricted submarine warfare in World War I was considerably worse, torpedoing civilian and neutral shipping without warning and making no effort to rescue survivors. German submarines simply could not afford to expose and endanger themselves by trying to follow what had been the accepted international Rules of War. Meanwhile, the Germans had been bombing and murdering Belgian civilians since the beginning of the War, and we know that they did so because the German Empire and Army was strongly imbued with a Nietzschean ideology of the rightness of the strong (Germans) smashing the weak (Belgians, etc.). These were not good guys.
Of course, if Woodrow Wilson were going to play Great Power politics, he should have known what he was doing. He didn't. As with so much else he put his hand to, and as I have examined elsewhere, Wilson botched the Peace at Versailles, which helped precipitate an even more terrible and general war in 1939. Because of this fiasco, libertarians are free to argue that the United States should not have entered World War I in the first place. Having done so, however, for reasons substantially better than Madison had in 1812, especially considering that Britain could not have been defeated in 1812, while Germany easily could in 1917, the subsequent withdrawal of the United States from world affairs only compounded the problems that Versailles had generated. This was the era when "Isolationism" became an issue in American politics; but the old idea that the United States could just stand aside from foreign affairs had terrible consequences when Britain and France themselves failed to deal forcefully with the rise of Fascism, Japan, and Hitler. Many millions would die because Britain and France did not crush Hitler in 1936. Of course, if they had, the United States could perhaps have continued in its isolation. But they didn't, and the United States had neither the will nor the standing to do anything better.
Libertarians still like to see the United States as the villain in the Cold War. The narrative of Communist propaganda, that the Soviet Union only wanted peace after World War II tends to be swallowed whole by the wishful thinking of libertarians. But there is no doubt that Josef Stalin was bent on conquest, and always had been, even when he accepted Western allies against Germany. It was never more than opportunism. And the poor Poles, who had been invaded, terrorized, and murdered by the Germans, whose invasion was the casus belli of World War II, and whose exiled forces had fought bravely with the Allies all during the War, would find themselves after the War invaded, terrorized, deported, and murdered by the Russians. Libertarians often don't seem to notice this and like to justify Russian actions as a proper response to American hostility. But Harry Truman had little hostility for the Russians and was only slowly aroused when Stalin violated one agreement after another for free elections and political liberties in Eastern Europe. Stalin had an International Revolution to run, and he never lost any focus on his purposes. The United States was not fully aroused until after Stalin got the bomb and authorized North Korea to invade the South.
Libertarians who accept Soviet propaganda at face value, and so who conform to the leftist and anti-American Party Line, are simply despicable -- and you know who I'm talking about, Future of Freedom Foundation (FFF)! The situation now with Militant Islam is comparable, except that, where Soviet leaders had often been elderly, weary, and patient pragmatists, Islamic leaders now are often young, ferocious, and ruthlessly aggressive. There never were Communist suicide bombers. But Muslim fanatics carry out such attacks every day, more often than not against other Muslims. While the explanation of Muslim fanaticism on the Left and with many libertarians is that the United States was mean to them, and deserves it, a good example of how bogus this is may be found in Syria.
The United States regarded Syria of the Assad regime as a terrorist state, but actions it took in opposition were mild and ineffective. But it was a murderous regime; and in the Arab Spring, a rebellion began (2011). The rebellion included various ethnic and political groups, including Islamists from al-Qa'ida. Obama told Assad not to use chemical weapons against the rebels. He did, and Obama managed to do nothing, accepting the word of Russia, the regime's ally, that it would oversee the removal of the chemical weapons. Of course it did. Meanwhile, however, the rebellion grew in strength and success. Al-Qa'ida split, and a more radical wing became the "Islamic State of Iraq and Syria" (ISIS), or the "Islamic State of Iraq and the Levant" (ISIL), or just the "Islamic State." The United States had nothing to do with this, except by the inaction favored by Obama and recommended by libertarians. Then ISIS invaded Iraq and quickly occupied Mosul, the second largest city in the country. Obama still did essentially nothing, and the ISIS terror regime -- murdering, enslaving, and raping -- has been in Mosul for a year and a half. The Kurds and the Baghdad government have made some progress against ISIS advances, but the US has really been helping the Kurds very little, and Baghdad has been getting most of its help from Obama's new Best Friend Forever, Iran, which will nuke Israel as soon as it can.
While the Left and isolationists like the idea that ISIS in Iraq is involved in a "civil war" that is none of our business, the organization obviously began in Syria and has extended its influence, not only into Iraq, but into Libya, Nigeria, Afghanistan, Europe, and elsewhere. Terror attacks in Europe, particularly France, have shocked the Europeans, who meanwhile have been allowing in refugees from Syria who certainly, and verifiably, have included ISIS infiltrators. Now we have had similar attacks and infiltrators in the United States, on a smaller scale that is nevertheless no comfort to the victims. Obama has used the terror attacks to attack the gun rights of Americans, which of course he wanted to do anyway, for reasons we have already seen. But his specific and relevant response to things like the murders in San Berndardino on December 2, 2015 has been all but non-existent. The United States will continue admitting the kind of people who murdered Americans in San Bernardino.
Thus, as in 1812, 1917, 1941, or 1990, Americans get caught in the spill-over of foreign conflicts. A head in the sand does not help. And even if the frustrations of the Islamic world, which has been unable to adapt to modernity, or kill all the Jews, or achieve its other goals, were all the fault of the United States, it really wouldn't make any difference. The threat is there, however it originated. But since the threat is from the internal failures of Arab and Islamic states, it is worse than a waste of time for Leftists and libertarians, yes libertarians, to fill everyone's attention with recriminations against American foreign policy. It is the sort of thing that will get us killed -- the actual purpose of the Left, whose hatred of Americans is palpable, but a very confused goal for advocates of individual liberty and limited government.
When Ayn Rand testified to the House Un-American Activities Committee (HUAC), she was angry that they did not let her testify more. She wanted to explain how Communist and anti-Capitalist messages were being embedded in Hollywood movies. The Committee wasn't interested. She was the only person in her era to testify before the Committee who had actually grown up in Soviet Russia during the Russian Revolution and who knew first hand what it was like. Rand was thus an alert anti-Communist, something that libertarians now seem to forget. She did not buy Soviet propaganda. So if, in the end, I am not exactly a Randite libertarian (an "Objectivist"), it is certainly not on this point. And I would be astonished if, in our day, she were to turn out to be an apologist for the poor, put-upon Muslims. The tolerance of the Left for practicies and attitudes among Muslims that we know they despise, even in milder forms, among Christians, reveals their hypocrisy and single-minded hatred for America. There was no such thing, for all her faults, in Ayn Rand, who thought that the United States was the greatest country that had ever existed, and said so.
So, ironically, having begun by distancing myself from Rand, in the end I come back to her. But this is just because, in comparison to the compacency and ideological blindness of libertarians in foreign affairs, Rand seems more sensible and realistic. On the other issues here, her thought suffers form the moral and political defects of most of the rest of the libertarian movement. The several deficiencies of the Pledge, the nature of the authority of government, and the proper involvement of the Nation in international affairs -- these are all major problems with libertarian ideology. As such, the power and value of the libertarian movement to reform American politics and to restore Constitutional Government is attenuated, if not actually undone. It is too easy to get off into tangential issues and irrelevant disputes, which perhaps describes most libertarian argumentation. Citizens ask the Libertarian candidate if his neighbor can have nuclear weapons, not what is to be done to prevent Iran from getting nuclear weapons -- which libertarian Congressman and 2012 Presidential Candidate Ron Paul thought was just fine. They have as much right to nuclear weapons as we do, especially when they have an urgent need to wipe out the Jews -- as they have said. Paul seemed unconcerned. This looks like a pathological detachment from reality.
Meanwhile, the appeal of Bernie Sanders in 2016 represents a comparable detachment from reality. This is another feature of the corruption of American culture. The messages that Ayn Rand saw in Hollywood movies continue even more obviously today, and they have done their work. The Oscar nominations for 2015, which committed the political crime of neglecting Black actors, nevertheless paid full tribute to Communist Martyrs. We might see this as reflecting Hollywood's priorities. I really am left asking if the voices for Constitutional Government, free markets, and liberty are helped or only confused by the libertarian movement, whose ideology is too problematic and arcane. I wish things were different. But they are not.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.
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. Randy Barnett is a law professnor at the Georgetown University School of Law. He has written several books, especially two outstanding treatments of the Ninth Amendment.
Barnett was one of the actual plaintiff litigators in Gonzales v. Raich (originally Ashcroft, et el. v. Raich, et al.), 2005, where a California woman, Angel Raich, sued the federal government to allow her to use medical marijuana, legal in California, where she grew it in her own yard and used it only to medicate her personal medical condition. There was no transport or sale of her marijuana. It did not leave her property. Barnett, of course, argued that the "interstate commerce" clause of the Constitution did not apply to Raich, and that Raich posssessed a Ninth Amendment natural right to the possession and therapudic treatment of her own body and to use whatever is appropriate as a matter of medical necessity.
Raich and Barnett lost, on the principle that the New Deal Court had already decided that the Federal Government can regulate, or prohibit, absolutely anything that can be construed as "affecting" interstate commerce. On this view, of course, absolutely anything can "affect" economic activity, and any economic activity can be construed as affecting "interstate commerce." The Court has since walked back the principle to the extent of saying that the economic activity must "substantially" affect interstate commerce. However, the shameless sophistry that growing something on your own property and using it yourself constitutes or affects "interstate commerce" has not been revoked. Also, no majority of the Supreme Court has ever used the Ninth Amendment to justify anything. The Ninth is to the Court no more than, as the infamous Robert Bork said, a "blot of ink."
In great measure, my impresson of the debate was that the wrong question was involved and that the disagreement between "originalists," like Barnett, and those promoting a "living Constitution," like Dorf, tends to miss the point. Also, Barnett's approach of distinguishing between the original "intent" of the authors of the Constitution, and the "public meaning" of the text, also seemed to me more or less beside the point. Dorf, also with at least some libertarian sympathies, mostly argued, with a bit of evasion and smirking, that no form of "originalism" could be effectively applied and that libertarians not only should embrace, but have already embraced, a "living Constitution."
The invisible elephant in the room in the whole debate was the fact that the New Deal Court destroyed Constitutional Government. This is the only reason why debate over "originalism" exists, and the only issue worth considering is what exactly the Court did, why it did it, and what the evils of the result have been. There were a few references to these issues between Barnett and Dorf, but nothing was addressed or discussed directly, let alone centrally.
What the Court did, in one case, was to take the "general welfare" clause of the Constitution, which authorizes taxation for the general welfare (which, by the way, would make protective tariffs unconstitutional), and interpreted this to mean that the Federal Government could spend money on absolutely anything that could be construed as for the "general welfare." As it happens, this reading was proposed by Alexander Hamilton to George Washington. Thomas Jefferson and James Madison sharply differed. In Congress, Madison said:
Jefferson said that, if Hamilton's interpretation were accepted, it would render the Constitution "nugatory." This, in fact, is what has happened. If the Federal Government can spend money on anything, while no spending has ever actually been struck down as not being for the "general welfare" (which means the application of the rule is dishonest in its own terms), then the public purse can be used just to buy votes, pay off political friends, punish political enemies, and, incidentally, personally enrich the ruling class of politicians, bureaucrats, lobbyists, and other dependents of government. Currently, more than half the Federal Budget is consumed by just three extra-constitutional programs: Social Security, Medicare, and Medicaid. There is no politically acceptable way to limit the growth of these programs, and an entire political party, the Democrats, who live in the shadow of the New Deal, do not see beyond "tax, tax, spend, spend, elect, elect," as one New Dealer put it. The actual general welfare of the Republic does not enter into these considerations, and the Republicans are without either the convictions, the courage, or (it often seems) the intelligence to really act in a contrary way, or even speak the truth.
In terms of the "originalism" debate, it is clear here that we must pay some attention to the intentions of the authors of the Constitution. The text itself may be insufficient in its ambiguity to refute Alexander Hamilton. The rest of the text of the Constitution, however, does provide some guidance. The Tenth Amendment asserts that the Federal Government is not a general government, but a government of only limited and enumerated powers. But then we also need some reasoning. If Hamilton's reading of the general welfare clause allows to the Federal Government a certain absolute and unlimited kind of power, to tax and spend, then this is not only contrary to the original spirit and conception of the Constitution, without which it would never have been ratified, but it results in a form of government that is unsustainable, in which the "looters," as Ayn Rand called them, will take over. The fate of such a government is evident in the history of many states, but most recently with Greece, which, without bailouts from the European Union, actually would have run out of food.
To the Supreme Court, of course, the Tenth Amendment has mostly been a dead letter. Segregationists claimed it (so they could try and ignore the 14th and 15th Amendments), and so obviously it is an illegitimate part of the Constitution, which can be ignored without ever being repealed. After all, that is the point of a "living Constitution." The whole theory of such a thing is to justify the actions of the New Deal Court, not just in ignoring parts of the Constitution, or in adopting questionable interpretations, like Hamilton's, but to effectively rewrite the whole thing to actually mean the opposite of its original meaning, let alone a meaning "not contemplated by its creators." The ideology of the 1930's, of which the New Deal was a part, was that government properly possesses absolute and unlimited power and authority. This is still the ideology of the Left and the Democratic Party. The Federal Government should be able to do anything, and tell anyone to do anything. This has been openly claimed and asserted by both politicians -- Pete Stark -- and political theorists -- Garry Wills, who actually thinks it shameful that Americans don't trust their government. After all, as Hegel said, the State is God on earth. I think of people like Wills as wishing to be sex slaves of the State, supine and helpless at the mercy of its lust.
Besides misusing the "general welfare" clause, what the New Deal Court also did, as I have already discussed, was to interpret "interstate commerce" to mean anything that "affects" interstate commerce, and so any economic activity whatsoever, and then potententially any activity whatsoever. Thus, Congress passed a "violence against women" act [1994] on the grounds that violence against women affects interstate commerce, even though men are twice as likely as women to be victims of crime, and three times as likely to be victims of murder. But the political meaning of "violence against women," according to feminism, is that it is a political crime not subject to the ordinary meanings and forms of criminal justice. Thus, individual criminals are not the problem. The target of the law is "patriarchy." "Domestic violence" involves a civil rights "bias" against women, perhaps because most murders of women are actually by people they know, or by "domestic partners" -- even though, as it happens, married women are among the safest persons in America, much domestic violence is by already-criminal transient boyfriends, who also victimize children, and the levels of violence among Lesbians are comparable to those in heterosexual couples. None of this fits the feminist narrative.
For the first time in memory, the Supreme Court threw out parts of this law as ultra vires, "beyond the powers" of the Federal Government [2000]. Congress immediately passed another version of it [2000], that has been reauthorzed twice [2005, 2013] and is still in effect.
According to the principles underlying the "violence against women" act, and then the "affordable care" act (Obamacare), the Federal Government can prohibit or require any activity whatsoever. I used to tell my classes that the Federal Government could pass a law against picking your nose, because if you saw that happening, you could lose your appetite, fail to buy food for dinner, and this, obviously, could affect interstate commerece. I kid you not. This is the level of argument in modern Constitutional jurisprudence. With Obamacare, the Democrats decided to have universal medical insurance by just requiring everyone in the country to buy medical insurance. Presto. Chief Justice Roberts ruled that this was unconstitutional. Howevever, he allowed the law to stand, with a majority of the Court, by interpreting the penalty for not buying insurance as, not a penalty, but a tax -- even though the Democrats had always claimed that the law contained no new taxes. But using taxation to prohibit, or require, something that is beyond the powers of the Federal Government has been a legal strategy since the prohibition of opium. That this device is dishonest and clearly a way of avoiding the Constitutional limitations on the powers of the government, and so illegitimate, is barely mentioned by anyone. The question was cleverly raised, however, whether the ruling by Justice Roberts meant that the Federal Government could require people to buy broccoli. Apparently so.
The effect of the rulings of the New Deal Court was to remove any real barriers to the Federal Government assuming absolute and unlimited power, making it no less than an active system of tyranny. As Thomas Jefferson said: This is not the government we fought for. Clearly, the idea of the "living Constitution" has been created simply to justify ignoring the letter of the Constitution (and also, by the way, of statute law), and replacing it with sophistries or with rulings that are actually the opposite of the plain meaning of the Constitutional or statutory text. This is a formula for arbitrary, unaccountable, and irresponsible rule by people who have not even been elected, contrary to every proper principle of American, Republican, Democratic, and Responsible government. The people who did and do this have tyranny in their hearts, however dressed up with the appearance of enlightenment and compassion. And they make a very good living off of it, thank you.
Curiously, in the debate been Barnett and Dorf, the misuse of the "general welfare" clause was never mentioned, despite the history of Hamilton's interpretation and the attested responses of Madison and Jefferson. The "interstate commerce" clause was mentioned, in passing, but without any discussion of its full implications. Barnett was troubled that according to his research "interstate commerce" originally might not have had as narrow a meaning as he would like, but he didn't mention that the sort of economic regulations enforced by Federal law now simply didn't exist at the time the Constitution was written. If "interstate commerce" comes to mean any economic activity, or any activity whatsoever, then the meaning of the words, and of the intentions of any of the authors of the Constitution, has certainly been distorted beyond recognition. Thus, his own worry about the scope of the clause misses the forest for the focus on a couple of trees. So, again, I think that much of the debate was beside the point.
The alternatives are that the Constitution means something or it means nothing. The "living Constitution" means nothing if any part of the Constitution can be ignored, explained away, or reinterpreted to mean the opposite of its plain language and/or the manifest intentions of its authors. That is no longer the Rule of Law, but the Justinian legislation of some sort of despot -- δεσπότης -- in many of these cases, the unelected and unaccountable -- in the original sense "irresponsible" -- justices of the Supreme Court. The principle that any text can mean anything, and that the intentions of the author are either unknowable or irrelevant, is part of the "post-modern" doctrines of "deconstruction" or "Theory."
The embarrassing feature of those ideas, of course, that the intentions and meaning of their own advocates cannot be accessed or reconstructed, does not seem to bother them -- a clue that these things are about power, not about honest epistemology, logic, or hermeneutics. Part of the evasiveness of Professor Dorf was his failure to clarify how a court is to be restrained at all if the Constitution can mean just anything. I also missed any confession or denial that he sympathizes with the nihilistic "post-modern" movements. But neither did Professor Barnett move into discussion of the ideological foundations of a "living Constitution" hermeneutics.
The ultimate issue is not the public meaning of the plain text of the Constitution, or the meaning intended by its authors, but its consistency with the principles of Constitutional Government. The Constitution and its provisions were supposed to accomplish something, and we actually need to know about the intentions and understanding of the authors to have the right idea about that. The debate over "originalism" obscures the real question, which is whether the Federal Government, or any government, is to be limited or unlimited, whether it exists to "secure these [natural] rights," in the language of the Declaration of Independence (and quoted by Professor Barnett), or whether it is to create a congenial absolutism for those governing and their feudal retainers. The New Deal readings of the "general welfare" and the "interstate commerce" clauses were specifically to expand the power of the Federal Government, obviously far beyond anything "contemplated by its creators," on the basis of new principles under which any limitations whatsoever on government power should be removed. And then, when we understand the totalitarian ideology of the Left, it is no mystery why these interpretations and these principles should be promoted. Professor Barnett never asked professor Dorf, "Do you believe in limited government; and, if so, how is a 'living Constitution' supposed or expected to effect that?"
Part of professor Dorf's quibbles in the debate involved the fact that the world is very different today than it was in 1789. This is a common theme of the Left. There are certainly issues that have arisen, unanticipated by the Founders, that are subject to an interpretive application of the text of the Constitution. Indeed, no one can deny that. But the problem again is with principles. The New Deal Court destroyed the Constitution because this seemed necessary to deal with the economic emergency of the Great Depression, and, in turn, it seemed necessary because a lot of people thought that the economy of the Soviet Union was successful and that a Command Economy, eliminating private property and markets, was the most advanced and successful economic system of the Age. The fact that the Great Depression was engineered, created, and sustained by "Progressive" government policies is a truth still appreciated by few in public discourse and government. And the continuous economic failures of the Soviet Union, not to mention mass murder and slave labor, are now happily forgotten by "Progressive" adults and certainly not taught in the schools to the clueless young. The Democrats still think that the more regulation, the better, the more fat bureaucrats, the better, and that the slow economic growth and people leaving the work force of the Obama years would get better if only the government had more control of the economy -- or perhaps it can no longer get better at all, because of the nature of things (or that growth rapes the Planet and should be stopped). They have not noticed the results of the application of this strategy, not only in the Soviet Union, but more recently in Venezuela, where the "prisoners of starvation" are not workers under capitalism (in the words of the Internationale, "Debout, les forçats de la faim"), but all the citizens under the "socialism" of Hugo Chávez. But they probably have noticed, which means all they really want, as we should have suspected all along, is power -- with the peasants begging for their favor.
So, as in with other such debates, I came away frustrated about what was not said, with the exchange never getting to the heart of the matter. Barnett clearly had a better understanding and better principles, but he avoided the reasons, the corrupt purposes, why Constitutional Government has been lost, the events that precipitated it, and the evils that are manifestly coming of it. Archie Bunker was actually more to the point: It was Franklin Delano Roosevelt, the sole "President for Life" of American history, perhaps like "Papa Doc" Duvalier of Haiti, although, to be sure, without the "death squads" of the Tonton Macoute -- unless we count the SWAT teams that kick down doors and shoot innocent civilians who think a home invasion robbery is in progress, violating all the old Common Law rules about warrants and searches. They also shoot your dog. This is the heritage of rules that foster (thoughtlessly or even intentionally) a police state, and it is not the government we fought for.
The Junto Debate: Huemer v. Epstein
A friend I have known for many years said not long ago that I was the most conservative person he knew. I found this a bit shocking and disconcerting, since he knew I was a Libertarian, and I did not think of myself as conservative at all.
A similar problem occurred to Milton Friedman and F.A. Hayek, who both wrote essays explaining how they were not conservatives, after typically being referred to as such in the press.
Such a confusion can even go back to Edmund Burke (1729-1797), who is often thought of as the father of modern conservativism, mainly because of his Reflections on the Revolution in France [1790], which warned of the danger of the French Revolution, presciently before evils like the Terror had even taken place. Yet Burke had been an enthusiast for the American Revolution, was opposed to British policy in India, and was a member of the Whig Party, the ancestor of the 19th Century Liberal Party, not the Conservative Party.
Uncertainty about what the opposition of the 18th Century Whig and Tory Parties was all about is still reflected in two buildings in the center of Princeton University, "Whig" and "Clio," which I have discussed separately. This is a sign of how Burke's appeal to history had become associated with conservatism.
William F. Buckley (1925-2008) once said that Conservatism meant to stand in the path of history and shout "Stop!" Indeed, one might in general think that conservatism means that things are just fine the way they are and always have been. We find precisely that attitude in many cultures, starting in Ancient Egypt, where, if things seem to be going bad, it is because the traditions of the past have been ignored and must be restored.
Egyptian Kings who wanted recognition as restorers of the old ways might call their era Conservatism in India came to be expressed in an elaborate religious and ideological system. Thus, the eternity of the social order, the Caste System, was established by the Vedas, the eternal texts of divine revelation. The evils of the world, whether natural or artificial, were not random or purposeless. They were the "fruit," phala, फल, of one's own actions, of one's karma, कर्म. There are no victims. Whatever happens to you that is bad (or even what is good) is the result of your own prior bad (or good) deeds.
Thus, the only way to improve your life, now or in the future, is to obey your moral and social duty, your dharma, धर्म, which is specific to your caste, your sex, and your stage of life. The general nature of the human or social condition cannot be improved, and history represents no story of progress. Indeed, history repeats the same kinds of events so regularly, that its cycles can all be represented by a single great epic of Hinduism, the Mahābhārata, which contains versions of everything that can happen. Narratives of actual historical events are unnecessary, and there are no contemporary historians of Classical periods in Indian history, before the advent of ʾIslâm. We only really know about Aśoka, for instance, from the records he carved himself in stone. I once had an Indian philosophy professor accuse my class (with no Indian students), "Those Chinese are just like you," i.e. having historians. In India, there is nothing new under the Sun.
The last phrase, of course, is from Ecclesiastes 1:9. The picture we get in the Old Testament is that when Israel suffers evils and disasters, it is because the Israelites have ceased to follow the practices required by God, who has withdrawn his protection. God frequently rebukes Israel for behavior contrary to "his commandments, and his judgments, and his statutes" [Deuteronomy 8:11]. As with the Egyptians, the improvement of our circumstances only occurs by returning to the original condition of obedience to God. Some sort of secular political action would be irrelevant.
In the Middle Ages, the sense was clearly that if things were bad, this was simply the human condition, whose remedy was only salvation and the afterlife. Unlike the sense in the Old Testament, where it might to be possible to restore the prosperity of Israel, the Christian sense is more that the Fall and its evils cannot be wholly made good until the Apocalypse and the End of Times. People who simply could not presently endure the evils of the world had the choice of monasticism, to drop out of secular society and retreat from everything that was going on. Even that didn't always work, as the monks of Lindisfarne learned when the Vikings raided the monastery in 793. Otherwise, the only hope for any improvement in historical society was conversion to the correct religion, a view that is prevalent in Islamic Fundamentalism today, the basis of various political movements and acts of violence.
The idea that something could be done about history, through secular principles, is a modern idea. And what went along with that was a secular update of conservatism. Thus, Thomas Hobbes (1588-1679) eliminated religion from his account of the origin of society and government. Hobbes cannot be thought of as a liberal or progressive thinker. What he did was to secularize the principles of the "Divine Right of Kings" according to the authoritarianism of 17th Century absolutist monarchy. This is often confused in the way Hobbes is presented to the modern student. Hegelian absolutists despise the very existence of individual persons, and Hobbes is then used as a kind of bait-and-switch. To the Hegelian, the absolute power of government, and something like its Divine Right, is to be retained, behind a smoke screen where Hobbes is otherwise misrepresented as a kind of Liberal advocate for the individual -- which can seduce would-be liberals into Hobbes's absolutism.
Meanwhile, the modern academic and activist ignores the true Liberal, namely John Locke (1632-1704), the apologist for the Glorious Revolution of 1688, where King James II was deposed. The regime that followed was one of limited government, natural rights, and the patrimony of the Whig Party which had opposed Royal Absolutism. The modern Hegelian, all for Statist Absolutism, is otherwise opposed to limited government, natural rights, and the liberties of the individual. In the Orwellian Newspeak of the Left, "freedom" is obedience to the government, i.e. slavery.
Edmund Burke thus found himself in an ambiguous position. As a Whig, he was opposed to Royal Absolutism and was loyal to the principles of the Glorious Revolution, but he had some trouble identifying the moral roots and justification of the business. He found it in history. The proof of Liberalism was its success and vindication by practice.
Thus, the Princeton conservative students, who could not endorse the Royalist loyalties of the Tory Party, reached for Burke and history and so to Clio, Κλειώ, the Muse of History, for the name of their poltical debate club, now in opposition to "Whig" -- although we could say that was not exactly what Burke had in mind, since, as we know, he was a Whig.
The use of history was further developed by F.A. Hayek, who thus saw history as an experimental process, following the philosophy of science of Karl Popper. So it isn't just history alone for politics and economics, it is the process of prediction and falsification, like any other science. Thus, Hayek, followed by Milton Friedman, could hardly think of himself as a conservative, when their program is not to conserve or retard progress, but to address it as a matter of experiment and testing.
There are several difficulties with Hayek's approach. One is that history can be used, not as a laboratory, but as a justification for fully conservative politics. That is what we see in David Hume, who rejected the Glorious Revolution, and endorsed a historical justification for the unreformed government of the Stuarts. His history of Britain was popular, to the extent that Thomas Jefferson needed to warn his correspondents about its improper influence. Thus, Hume, an atheist, is comparable to Hobbes, and this antedates Burke, but his appeal to history is much like Burke's, who would be considered more conservative than Locke, with A Vindication of Natural Society [1756].
Since history can be used as a justification for Conservatism, this is where we get confusions about the status of Burke, Hayek, and Friedman. Without the proper qualifications, their appeal to history can easily be interpreted as conservative ideology; and this would not be wrong for Hume, or for aspects of Burke. Also, when one defends the free market and capitalism, this will be labeled "conservative" by radicals who want some kind of Marxist political and economic regime. For them, this is based on rhetoric and ideology, and not whether genuine conservatism is involved or not.
We also have the difficulty of Hayek's approach that treating social innovatons as experiments is morally questionable. You are, after all, playing with people's lives. Thus, social and economic practices cannot be introduced with just an attitude of "Let's see what happens." Lives and fortunes could be lost as a result. But if proposals for innovation must be based on some kind of moral insights or justification, this throws us back to Burke's original problem, of where moral novelties are going to come from in the first place.
If innovations are introduced on the basis of some theory that can pass moral muster, then the next problem is of clearly assessing the consequences. Politicians not only try to distance themselves from failed policies, but sometimes they try to represent failed policies as successful, blaming someone else with fraudulent explanations. For instance, Herber Hoover believed that the American economy would be helped, and a Depression avoided or remedied, by driving up wages. This is called "Demand Side" economics. Give the workers more money, and they'll buy stuff, promoting prosperity. Sounds good. He also thought that driving up the prices of agricultural products would help farmers. That sounds good too.
Unfortunately, Hoover's ideas didn't work. Even the great "public works" project of the Hoover Dam, endorsed by the wise, didn't make any real difference. The Great Depression began and worsened under his presidency. So Franklin Roosevelt was elected in 1932. And Roosevelt, curiously, continued the precise same policies as Hoover, with precisely the same justifications and results. So the Depression continued. Agriculture collapsed; and the U.S. government, with people hungry, began paying farmers not to grow food. First they had actually burned food, but the "optics" of that were bad. So they arranged for the food not to exist in the first place. This might have been a clue, to the perspicacious, that some kind of insanity was involved in all this. Unfortunately, perspicacity seems to have been in short supply. And the U.S. Government still pays rich people to buy fertile land and not grow food.
People were deceived by all this, and they continue to be deceived even now. The political consensus seems to be that the New Deal was a big success, even while it is acknowledged that only World War II ended the Depression, and that the Depression even got worse after the election of 1936. After all, the election of 1936 was an endorsement of the New Deal, with all of its ineffective policies. Well, the WPA ("Works Progress/Projects Administration") did employ some people; and since many of them were artists, the cultural elite celebrated.
How the New Deal made things worse, and how the War ended it, is subject to as much confusion as the reasons for the Depression in the first place. Since the U.S. Government froze wages and prices during World War II and inflated the money supply, this drove down real wages for the first time since Hoover. Thus, the whole principle and approach of the economic theory of Hoover and Roosevelt got reversed; and when the War ended, as people even expected the Depression to come back, the low real wages allowed everyone to get hired for the first time since 1929. This was regarded as a mystery by contemporaries, and there is still little understanding of it now. Low wages paradoxically made for revived prosperity. Such a paradox is still glossed over in most treatments of the era, and today's "public intellectuals" simply don't believe it. They are always eager to do the New Deal all over again.
In fact, the correct economic principle for macroeconomic policy was "Supply Side" economics, based on Say's Law, actually one of the oldest priniciples in economic science. Yet in 2022, the Democrats still think that "tax and spend" policies will produce prosperity, when they never have; and they have told nothing but lies about the opposite approach ever since Andrew W. Mellon (1855-1937) cut taxes in the Coolidge Administration. If we ask Cui bono?, "Who benefits?" it becomes more obvious that "tax and spend" benefits government, and its hangers-on, more than the citizens or the economy at large. Voters are still suckered in by this. Give me my "benefits"!
If it is so easy to obscure the causes of even the Great Depression, how well is Hayek's experimental view of economics working out? In public discourse, not very well, it would seem. Meanwhile, the problem of the morally questionable nature of experimenting with people's lives does not slow down the Left in the least. Unleashing criminals on the public, despite the (more modest) experience of already having tried this in the 1960's, well, there is no problem with that! Sky-rocketing crime and murder rates don't affect politicians with bodyguards. Why should they care? Well, they don't.
Of course, much of the problem is just a combination ideological commitment and dishonesty. And there is the self-interest on the part of the Ruling Class, which benefits from Big Government and is shielded from most of the evils it creates. There is nothing wrong with Hayek's idea in its own terms, except perhaps for the lingering moral problem of the initial justification of innovations.
Is innovation even necessary? Well, yes. This is the first reason why I would not be a conservative. There is Progress in history. Indeed, they keep reminding us that slavery was bad. But the idea that slavery should be abolished is a modern innovation. Where did that come from? The Roman jurists had said that slavery was "contrary to nature"; but that didn't otherwise stop Roman slave law.
The larger background to justify the rejection of conservatism, at least for me, is Platonism. The world is imperfect and will always be. But there is room for improvement. And the justification for innovations is going to be our knowledge of the Good. In Platonism, this is available to us, and it can be compared to existing conditions. So we will not be just playing with people's lives. But we also must be careful. We can be wrong. There is no certainty in moral knowledge.
That is where Socratic modesty comes in:
Then let us again examine that, Euthyphro, if it is a sound statement [εἰ καλῶς λέγεται -- if said well, καλῶς], or do we let it pass, and if one of us, or someone else, merely says that something is so, do we accept that it is so? Or should we examine [ἢ σκεπτέον] what the speaker means [τί λέγει ὁ λέγων -- what the speaker says]?
Socrates, "Euthyphro," 9e, by Plato, Euthyphro, Apology, Crito, Phaedo, Phaedrus, translated by Harold North Fowler, Loeb Classical Library, Harvard University Press, 1914, p.34; English, Five Dialogues, Euthyphro, Apology, Crito, Meno, Phaedo, by Plato, translated by G.M.A. Grube, Hackett Publishing, 1981, p.21, notes added. It is by Socratic Method that we investigate the right and the good. And then, as Socrates says, "Then let us again examine... if it is a sound statement." With sufficient confidence, it would be a ground for action. After that, the conscientious agent applies the principles of Popper and Hayek, to test, not just the "statement," but its consequences. Certainly, it would have "seemed like a good idea at the time"; but not all good ideas pan out. History becomes the record of this experience.
There is, of course, a lot of history already. Although the Glorious Revolution was an innovation, Edmund Burke could look back on a century of its consequences. Those consequences had enabled Britain to rise to become nearly the principal power in Europe, inflicting a catastrophic defeat on France in the Seven Years War, and where, as John Locke said already, a common laborer lived better than a "king in America," i.e. of the Indians.
The innovations in England actually went back earlier, although I doubt that Burke was very conscious of it. There were no serfs or peasants in England. This seems to have been a consequence of the Norman Conquest, which, although immediately brutal for the English, had consequences that gave England an economic advantage over France or the rest of Europe. This was because the Norman government, like all governments, did not want to share power, and certainly not with a landed feudal aristocracy.
With the Conquest, the English nobility were dispossessed and the central government could get its way. Without real feudalism, the result was that those on the land could leave and move around, creating a free labor market. We see one consequence of that during the Black Death, when the Court decided that workers were getting paid too much -- i.e. deaths had created a labor shortage, which drove up wages. So a maximum wage was set, at six pence (6d) a day. Enforcing this would have been beyond the capacity of Mediaeval government. A couple centuries later, soldiers and sailors would be hired with the "King's Shilling," i.e. pay of a shilling a day, or 12 pence, twice the maximum wage of the Black Death -- long after the Black Death was over (although occasional plagues kept happening).
English soldiers and sailors were not the high end of the labor market. More like the low end -- the scale of wages had been upended. No one joined the military for the money. Part of the difference in that case would have been debasement. A silver penny of 1351 was 18 Sterling silver grains in weight, while that of 1551 was only 8. So the "King's Shilling" may have just been to keep up with inflation. But we know that later skilled workers got a lot more than that, and there was no "maximum wage."
The Soho Forum Debate: Barnet v. Dorf
Article I, Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welare of the United States...
On June 11, 2018, I attended a debate between Professor Barnett and Michael Dorf, who is a law professor at the Cornell University School of Law. In the photo, Barnett is at the left, Dorf at the right, and the well known libertarian Judge Andrew Napolitano, moderating, is between them. This event was held by the Soho Forum at the Subculture Theater, 45 Bleecker St., in New York City. The Forum holds monthly debates on issues of concern to libertarians, in part as a successor to the late libertarian forum the NYC Junto. The proposition to be debated on this occasion was, "The U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text," with Barnett defending and Doft rebutting the thesis.
I cannot undertake to lay my finger on that article in the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.... With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. [1791]
Copyright (c) 2016, 2018, 2023 Kelley L. Ross, Ph.D., Postumus Friesianorum, All Rights Reserved
Why I am not a Conservative
by Kelley L. Ross, Ph.D.
, "Repeater of Births," where one of the glyphs is literally of a woman giving birth (sitting upright, as the Egyptians did). The idea was that the King was able to put things back as they were at the "Beginning," with the "Rebrith" resulting in the restoration of the original order of things. Today, a "rebirth" might be used to mean something new altogether. This would horrify traditional societies.
Οὐκοῦν ἐπισκοπῶμεν αὖ τοῦτο, ὦ Εὐθυφρον, εἰ καλῶς λέγεται, ἢ ἐῶμεν καὶ οὕτω ἡμῶν τε αὐτῶν ἀποδεχώμεθα καὶ τῶν ἄλλων, ἐὰν μόνον φῇ τίς τι ἔχειν οὕτω, ξυγχωροῦντες ἔχειν; ἢ σκεπτέον, τί λέγει ὁ λέγων;
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| O the Roast Beef of Old England or The Gate of Calais, 1748, William Hogarth (1697-1764), the Tate Britain. |
The statistics are that for "bricklayers, carpenters, masons, smiths," the daily wage on a six day week in the 1860's was 6 shillings 6 pence (6/6). "Common laborers" might get 3s9d -- $0.93 on the gold standard, close to the "another day, another dollar" of memory. Later, fresh off the boat, a sweatshop worker in New York might earn 50¢ a day, more like 2 shillings in England.
More vivid than such numbers is O the Roast Beef of Old England by Hogarth, with a fat French priest but otherwise starving Frenchmen, while a haunch of roast beef is being delivered from England. Of all English artists, Hogarth knew about the conditions of the population across English society, and this painting is one that celebrates the prosperity of England in comparison to the miserable conditions among French peasants and laborers. Hogarth knew his stuff, and what is left for us is simply to explain it. Yet much of American politics seems to aim to turn Americans into serfs of the federal government, to the benefit of public parasites like bureaucrats (including "educators") and politicians.
In the 20th Century, more people were murdered in Utopian projects than had been killed by the Spanish Inquisition, by 17th Century witch trials, and by the Reign of Terror in the French Revolution all put together. Many, many more. Stalin or Mao might have a whole Reign of Terror before breakfast.
The improvement of society will not mean perfection, and the most sobering truth of political life is the law of "unintended consequences" and the trade-offs between benefits and costs. The form of government itself is subject to such problems. People have no idea what kind of government the United States is supposed to have. Hint: It's not "democracy." But the design of the Founders, with the reasons for it, has not only been forgotten; it has been destroyed.
One of the most evil consequences of the New Deal was the decision that the "general welfare" clause of the Constitution meant that the federal government could spend money on anything. This had already been proposed by Alexander Hamilton to President Washington. Both Madison and Jefferson recognized that it would be a disaster. And it has been. American government, at the largest scale, is now a matter of buying votes and making political payoffs. This is a cancer on the nation. More than half the federal budget is made up of just three programs -- Social Security, Medicare, and Medicaid -- none of them Constitutional or fiscally "sustainable," a word that the Left loves these days.
Rejecting the New Deal, does that make me a conservative? Well, what if the New Deal was not "progress" but in fact a return to feudalism? This is what Hayek thought. "Progressive" politics is in fact deeply reactionary. It was Leon Trotsky, after all, who argued that slave labor was acceptable because, in the worker's state, it would simply be the workers enslaving themselves, which means it was voluntary and not slavery at all -- even if they get shot for trying to quit their jobs and run away. Unfortunately, such sophistry is now the bread and butter of the "education" in American universities.
But, if truth be told, I am enough of a conservative to recognize the lessons of history. Burke and Hayek were right about that. But Hume wasn't. The difference there is that Burke and Hayek allowed for moments of innovation, on carefully considered grounds, while Hume seems to rule that out. That is why neither Hayek nor Milton Friedman nor I are proper Conservatives. But the harshest lesson of history may be that its most serious lessons often need to be recognized over and over again. Karl Marx had a certain bon mot, that history repeats itself, first as tragedy, then as farce. The farce, unfortunately, will be no less tragic, and certainly no less destructive.
All politicians and other kinds of office holders in America take oaths to "reserve, protect, and defend" the Constitution of the United States; but, not only do they not understand or believe in the Constitution, they are dead set on destroying it, Americans have arrived at a very peculiar point in their history. The Civil War and the Civil Rights Movement were all aimed at fulfilling the ideals of the American Revolution; but fashionable Marxists do not believe in the American Revolution or in any of the ideals of the Enlightenment, like Freedom of Speech or other actual Civil Rights. To Marxism, those are all bourgeois "mystifications," for which the remedy is totalitarian dictatorship, now with the added bonus of virtuous poverty in an "ecotopia," a development that would have shocked Marx, who expected communism to be more productive than capitalism. But now we know that prosperity is bad for the Planet. But for us to sit in the dark, hungry.
So, obviously, not only do old lessons need to be relearned, but there are new problems and new lessons also, even if they arise because of the same old misconceptions and hostilities. Fighting old battles all over again might make one sound like a conservative; but then the enemies remain tyranny and feudalism, the fight is still mainly with the past, and with the real reactionaries. Hopefully, Marx himself might have recognized regimes like those of Stalin or Mao as "Oriental Despotism." He did not expect that real progress would occur in Russia or China.
At the same time, I have already examined on this page how I am not a standard Libertarian. Some of my deviations would be agreeable to actual Conservatives, others not so much. They would certainly not be acceptable to the Eisenhower Republicans who signed on with the New Deal. This has put Republicans in a false position ever since. In the 1996 Presidental Election, Bob Dole waved a copy of the Constitution and invoked the Tenth Amendment as a limitation of Federal power. However, looking at his career, one might think he had only recently discovered that the Tenth Amendment existed; and he never did quite say what might be eliminated from Federal law to bring the government into conformity with the Amendment. The New Deal was going to be safe, however often Democrats wanted to accuse Republicans of wanting to abolish Social Security. Accuse me, creeps. That's right.