The Kind of Libertarian I Am

by Kelley L. Ross

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

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 from their States.

Almost all Federal lands, which include the majority of the land in several Western States, 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. 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 approaching 19 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"). What this will lead to is evident in Greece, where the economy and budget have simply been 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 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.

Since the Government now sees American citizens as threats to its power ("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 tampled 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).

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 particuarly 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 that 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 priniple 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 Governments says it is, and so the Government has violated no trust if its says it has not, regadless 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 Gary Wills, Robert Bork, or Chuck Lorre, are offended that we should think of government as a "necessary evil" rather than a glorious passioante 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 weath 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 brankrupt 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 prinicpal 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 this 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.

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