As noted in the N.Y. Times piece Court Affirms Ban on Aiding Groups Tied to Terror, the Supreme Court’s “conservatives,”

In a case pitting free speech against national security, … on Monday upheld a federal law that makes it a crime to provide “material support” to foreign terrorist organizations, even if the help takes the form of training for peacefully resolving conflicts.

Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.

In dissent, Justice Breyer

said the majority had drawn a false analogy between the two kinds of assistance.

“Money given for a charitable purpose might free up other money used to buy arms,” Justice Breyer said from the bench. But the same cannot be said, he continued, “where teaching human rights law is involved.”

But even though the decision is disturbing, even the conservative majority did not go as far as Solicitor General–and now Supreme Court nominee–Elena Kagan, wanted:

Chief Justice Roberts said the government had advanced a position that was too extreme and did not take adequate account of the free-speech interests at stake.

“The government is wrong,” the chief justice wrote, “that the only thing actually at issue in this litigation is conduct” and not speech protected by the First Amendment. But he went on to say that the government’s interest in combating terrorism was enough to overcome that protection.

In his written dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer said the majority had been too credulous in accepting the government’s argument that national security concerns required restrictions on the challengers’ speech and had “failed to insist upon specific evidence, rather than general assertion.”

The common assertion by democrats, and even by some libertarians who buy into the left-right paradigm, that liberals are better on civil liberties is obviously mistaken. (For more: see Liberals on Free Speech and Finance Campaign Laws; Slate Liberals: ‘Let’s see your scrotum if you want to get on an airplane,’ ha ha; Re: War and Civil Liberties Under Obama.)

[LRC]

As Guido Hülsmann and I observe in our Introduction to Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009), Professor Hans-Hermann Hoppe is without a doubt one of the most important libertarian scholars of our time: “He has made pioneering contributions to sociology, economics, philosophy, and history. He is the dean of the present-day Austrian School of economics, and is famous as a libertarian philosopher. He and his writings have inspired scholars all over the world to follow in his footsteps and to provide a scientific foundation for individual freedom and a free society.” Hoppe is beloved and admired by libertarians worldwide for his tireless work in the service of liberty and his prodigious scholarly output–his publications have been translated into over 21 languages; and his international Property and Freedom Society, founded in 2006, draws an increasingly impressive audience at each annual meeting (the next one starts in about a week, at which I am speaking). And yet, as his mentor and friend Murray Rothbard, the greatest libertarian thinker ever, noted in his 1990 article Hoppephobia:

Although he is an amiable man personally, Hoppe’s written work seems to have the remarkable capacity to send some readers up the wall, blood pressure soaring, muttering and chewing the carpet. It is not impolite attacks on critics that does it. Perhaps the answer is Hoppe’s logical and deductive mode of thought and writing, demonstrating the truth of his propositions and showing that those who differ are often trapped in self-contradiction and self-refutation.

Here, Rothbard was talking about Hoppe’s “argumentation ethics” defense of libertarian rights, which drove many libertarian scholars bonkers.

Another controversy erupted in 2004 when, during a money and banking class lecture, Professor Hoppe illustrated the concept of “time preference” by noting that people who have children tend to develop longer time horizons (they have to plan ahead for their kids); and that, in comparison, certain demographic groups that tend not to have children, such as homosexuals, the very old, etc., could be expected not to develop as as long an economic time horizon as those that do have children. In other words, because homosexuals don’t have children, ceteris paribus, they will have higher time preference. Now whether this is empirically true or not is not the point; it was simply an illustration of the concept of time preference. And yet a student took offense, resulting in sanctions by UNLV and Hoppe’s battle with the thought police–which he ultimately won (see Hoppe, My Battle with the Thought Police, Mises Daily (April 12, 2005); Stephan Kinsella & Jeff Tucker, The Ordeal of Hoppe, The Free Market (April 2005); Jeff Tucker, Idiot Patrol, Mises Blog (Mar. 2, 2005); and the Hans-Hermann Hoppe Victory Blog, signed by over 1800 supporters).

Related to this controversy were some comments by Hoppe in his 2001 book Democracy: The God That Failed about discrimination against certain people by private “covenant” communities in a free society. Over the years Hoppe’s critics–most of them, sadly, libertarians–have uncharitably accused Hoppe of homophobia, bigotry, and the like, based on these passages. In particular, on p. 218, Hoppe writes:

There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society. Likewise, in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. They–the advocates of alternative, non-family and kin-centred lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism–will have to be physically removed from society, too, if one is to maintain a libertarian order.

In his followup article, My Battle with the Thought Police, he elaborated:

In my book Democracy, The God That Failed I not only defend the right to discrimination as implied in the right to private property, but I also emphasize the necessity of discrimination in maintaining a free society and explain its importance as a civilizing factor. In particular, the book also contains a few sentences about the importance, under clearly stated circumstances, of discriminating against communists, democrats, and habitual advocates of alternative, non-family centered lifestyles, including homosexuals.

For instance, on p. 218, I wrote “in a covenant concluded among proprietors and community tenants for the purpose of protecting their private property, … no one is permitted to advocate ideas contrary to the very purpose of the covenant … such as democracy and communism.” “Likewise, in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. … (violators) will have to be physically removed from society.”

In its proper context these statements are hardly more offensive than saying that the Catholic Church should excommunicate those violating its fundamental precepts or that a nudist colony should expel those insisting on wearing bathing suits. However, if you take the statements out of context and omit the condition: in a covenant… then they appear to advocate a rights violation.

Despite this clarification, his detractors continue to distort his words and hurl unjustified accusations. To be clear, I’m not homophobic at all (see my The Libertarian Case for Gay Marriage), and neither is Hoppe. I know him well, and would not associate with bigots etc. Hoppe is one of the finest people I’ve met, and a modern, cosmopolitan, tolerant person. He’s not the fundamentalist conservative ogre some paint him to be. In the interest of setting the record straight I sent my interpretation of these passages to Hoppe, and he stated that he agreed entirely with it, and that I was free to post that he did:

Hans, from time to time you are still unfairly criticized based on your comments that covenant communities would “be intolerant of advocates of” “alternative, non-family and kin-centered lifestyles” such as  “individual hedonism, parasitism, nature-environment worship, homosexuality, or communism.”

I’ve always thought it clear that what you meant was that in a private, covenant-based order, one that is not only libertarian but also traditionalist and based on the family-based social unit, people who are openly hostile to the underlying norms of this society would tend to be shunned, maybe even expelled (not violently, but consistent with property rights). Some of your uncharitable critics say you mean that homosexuals themselves would be expelled merely for being gay. I thought what you meant was not gays per se, but rather those people openly hostile to the basic cultural norms of society, who openly and habitually advocate incompatible lifestyles/ideas and against the underlying normative purpose of the community–like a guy who hates science fiction would be out of place at a Star Trek convention. Thus, the gay couple down the street who mind their own business would not be expelled, but only those who are openly hostile to the basic heterosexual or private property basis of society.

I think of this as in the case of a priest: he lives in a primarily family-based, procreative culture. Yet he is himself celibate and does not procreate. However, he is not going around advocating that no one procreate, that everyone be celibate like him. If he did, he would in fact be advocating something misanthropic and destructive of mankind itself. Rather, he is a special case and lives within a predominately family-based heterosexual society; and he does not condemn heterosexual marriage and procreation; far from it, he supports it.

Likewise, I take you to be saying that the occasional homosexuals can get along fine in a society, while recognizing they are a minority and that the predominate heterosexual family unit is fine, but that they are just different–like the priest is. Your comments don’t even imply that the covenant community would require them to be “in the closet,” just not openly hostile to traditional morals and practices that the members of this community believe are essential to its purpose.

(I suppose you also envision some covenant based groups could be more radically fundamentalist and not even tolerate homosexuals at all, but that is not what you are equating with a covenant-based libertarian society per se.)

In support of this interpretation, I note that on p. 212 you explicitly state that what gays do in private is their own business, and you write: “To avoid any misunderstanding, it might be useful to point out that the predicted rise in discrimination in a purely libertarian world does not imply that the form and extent of discrimination will be the same or similar everywhere. To the contrary, a libertarian world could and likely would be one with a great variety of locally separated communities engaging distinctly different and far-reaching discrimination” (“e.g. nudists discriminating against bathing suits,” as Tucker points out in Idiot Patrol). You then favorably quote Rothbard, from his 1991 Rothbard-Rockwell Report article, “The ‘New Fusionism’: A Movement For Our Time”:

In a country, or a world, of totally private property, including streets, and private contractual neighborhoods consisting of property-owners, these owners can make any sort of neighborhood-contracts they wish. In practice, then, the country would be a truly “gorgeous mosaic,” … ranging from rowdy Greenwich Village-type contractual neighborhoods, to socially conservative homogeneous WASP neighborhoods. Remember that all deeds and covenants would once again be totally legal and enforceable, with no meddling government restrictions upon them. So that considering the drug question, if a proprietary neighborhood contracted that no one would use drugs, and Jones violated the contract and used them, he fellow community-contractors could simply enforce the contract and kick him out. Or, since no advance contract can allow for all conceivable circumstances, suppose that Smith became so personally obnoxious that his fellow neighborhood-owners wanted him ejected. They would then have to buy him out—-probably on terms set contractually in advance in accordance with some “obnoxious” clause.

Elsewhere (in Nations By Consent: Decomposing the Nation-State, which you favorably cite elsewhere in Democracy), Rothbard similarly writes:

With every locale and neighborhood owned by private firms, corporations, or contractual communities, true diversity would reign, in accordance with the preferences of each community. Some neighborhoods would be ethnically or economically diverse, while others would be ethnically or economically homogeneous. Some localities would permit pornography or prostitution or drugs or abortion, others would prohibit any or all of them. The prohibitions would not be state imposed, but would simply be requirements for residence or use of some person’s or community’s land area.

In other words, your critics who accuse you of being homophobic, or of stating that libertarian communities would or ought to discriminate against homosexuals per se, or who assert this is what you meant in the passages, are flat out wrong. You were talking about private, covenant-based communities–in particular the ones based on more traditional, culturally-conservative heterosexual-family-based norms–who would tend to “be intolerant of advocates of” ideas incompatible with, or openly hostile to, or “contrary to the very purpose of” the norms of such a traditionalist covenant. You’re not saying that libertarian societies per se, even libertarian covenant communities, would engage in such discrimination. There would be a diversity of such contractual communities, and some of them would be more traditionalist and more intolerant of those people who advocate practice and ideas that are contrary to that community’s norms and purpose.

As I said, I’ve always read you this way, and think this is clear from reading your words, but some of your critics insist to the contrary so I thought it might be useful to attempt another clarification.

[LRC]

In Put Your Hands Up In The Air For Peace!, I noted a recent song, “Peace,” by the Luminaries, and other classic pro-peace songs (clips re-posted below). Libertarian philosopher Geoffrey Plauché notes a recent pro-peace video in his post White Flag Warrior:

There’s a new anti-war rock/hip-hop song hitting the air waves lately. It is called White Flag Warrior, from the album Survival Story, by Flobots and featuring Tim McIlrath of the punk rock band Rise Against. It’s a catchy tune with good lyrics, melding both rock and hip hop elements. The song has a strong non-violent resistance tinge to it. The oft repeated line that “we’d rather make our children martyrs than murderers” reminds me of the Socratic position that it is better to suffer injustice than to commit it — truly libertarian sentiments.

Lyrics

We request to negotiate
We come to you unarmed
We desire to communicate
You cannot do us harm

They want sacrifice
They hatch schemes and ask me to follow their path to the afterlife

I’ve got an appetite
For nice things and pipe dreams that my enemies could be blasted by

New metaphors
View that are better for you can’t survive if I’m your competitor

Rise together or fight separate wars
I pray I’m never forced to be a predator

Spectres spectate
We wont last
They glad to hate
When gladiators
Breathe their last
Scream en masse
When the dreams do clash
Like the swords in the wars
Let me bleed on that
But they feed on that
Say we need strong backs
Call us weak
If we don’t redeem contracts
But the feast wont last
When this beast attacks
The sons and the fathers
Will be free at last

This is love this is not treason

They see sharks in the estuary
They claim the arc’s Bartholomew’s
They say war is necessary
But we say war is child abuse

We’d rather make our children martyrs than murderers
We’d rather make our children White Flag Warriors

Core-to-core
Were the ones
We’ve been waiting for
We hold steady
Steadier than stevedores
Not tevias or matadors
On matters of what came before
Forgive the debts
To settle scores
Test the mettle
Either ore
Whats your plan got to do with me
If the bell tolls let freedom ring
And find new ways if we must be King
Instead of leading the young to our suffering

We pass testaments down scream back at heaven
For testing us like Wednesdays at eleven
Wanna recruit and train us to act evilly?
Save it for the shooting range and smack DVDs
Won’t study war no more this millennium
It’s never again to me or anyone
So think harder when you refer to us
Rather make our children martyrs than murderers

They shell dwellings to quell the shelling
They lift taboos to seduce the cowards
They say we’re too yellow-bellied
But we say we’re the new superpower

We seek waivers to not be liable
We claim to speak for a higher truth
We stand opposed to the homicidal
We tell you you’re fireproof

***

Some of the others mentioned above are here: first, the wonderful video and song “Peace,” by the Luminaries, which premiered at the Elevate Film Festival 2008 (see The Peace Project).

P.O.D.’s “Tell Me Why”:

Another reader suggested “another artist who I feel has been extraordinarily dedicated to the message of peace. Michael Franti has actually travelled to Iraq, Israel, Palestine, and elsewhere in the Middle East and created a documentary called I Know I’m Not Alone on his trip, where he basically travelled all over Iraq, staying with families, playing music on street corners (and even at bars filled with U.S. soldiers, singing a song that goes “You can bomb the world to pieces, but you can’t bomb it into peace”), and just talking to people about the human cost of war. He also runs an annual Bay Area music festival called Power to the Peaceful. He has many great songs, but one of my favorites (and apparently his most popular music video on Youtube) is called It’s Time To Go Home”:

More or less explicitly libertarian/Austrian: Amy Allen’s “Revolution”; Neema V’s rap “I Own Myself”; and John Papola’s Hayek Keynes rap “Fear the Boom and Bust”:

[LRC]

I’ll admit: for the last 3 years or so I’ve become an Apple fanboi. My first computer in 1984 was an Apple II+ clone–a Franklin Ace (unfortunately, Apple was able to use copyright law to get this competition squashed). But after that I was in the PC world, for almost 20 years. Until about 3 years ago. I was tempted to get a MacBook but was leery of the change. Finally my wife got a Macbook and one thing led to another–I now live a blessedly PC free world except for the one remaining PC I still have to use at work–and I have plans for that one too. Now I have iPods, iPhones, iMac, MacBooks. I guess I’m a fanboi except I don’t pretend that Macs don’t crash–all my computers crash. They are all too complex not to. People who say their computers don’t crash are either lying or don’t really use them. (Linux-fans–please don’t pester me. I’m glad the market has diversity and tinkerers like you have something you can tinker with. I have two degrees in electrical and computer engineering but I just want a computer that works–a nice tool I can use. I also prefer automatic transmission cars even though I know how to use a stick shift.)

So naturally I could not resist getting an iPad. I had ordered the 3G version which does not arrive till later this month. But finally the temptation to get one won out so I persuaded my wife to let me get a wifi version for her and my son. After all, I told her–we all read books. One won’t be enough! On the other hand, we won’t need two 3G models! Whoever is traveling for work can take the 3G one, I said. So, I nabbed one Monday morning at a local Apple store.

I’ve developed a variety of impressions and views since having gotten it. They are bit jumbled but here they are. I agree with some of the comments of those praising it, though some of it is over the top. Andy Ihnatko (2) and Walt Mossberg raved about it–Ihnatko calling it “one of the best computers ever”, Mossberg said it was a “game changer”. One of the most balanced reviews was Farhad Manjoo’s You Don’t Need an iPad — But once you try one, you won’t be able to resist. There are critics, too–see, e.g., Cory Doctorow’s Why I won’t buy an iPad (and think you shouldn’t, either). The critics have some good points but many of the criticisms I find silly. Doctorow complains that you won’t be able to trade old comics any more. Well, so what. I get books to read them, not to trade them. The quality and convenience and availability will be so much better in digital form. So the rest is a question of price. If the price is low enough, that compensates for the lack of a secondary market. And if the price is too high–hey, that’s the market (okay, distorted by copyright law, but still–there’s competition).

And many critics point to things it doesn’t have. It has no USB. The battery can’t be removed. No multitasking. Well this is silly, in my view. You don’t buy something for what it can’t do but for what it can. And it can do many cool things, so it will find buyers. As is clear by now. Everyone who sees my iPad oohs and ahhs, wants to touch it, and says they want one.

So what is my view of the iPad after getting one? Well, it is gorgeous and well made. It is fun to use. It is useful. But like Apple’s co-founder Steve Wozniak, I was hoping I might be able to use it as a laptop replacement. And I think–probably, it can’t be. The basic reason? It has no (real) keyboard.

Look, I used to love my Blackberry. Like HP calculators, they have great buttons and keyboards. I was initially reluctant to get the iPhone because it had no keyboard. When the 3G model came out, I was finally sold. I figured the advantages of the iPhone were worth that one tradeoff. And it is. In fact the touch keyboard has advantages–it can reconfigure for different contexts, for example. And the fact is you can’t do a lot of typing on a Blackberry either. So it’s not a big problem to have a similarly-limited touch keyboard on the iPhone.

But on the iPad the lack of a real keyboard is a much more severe cost. Especially for people, like me, who can touch type proficiently. Yes, the touch interface on the iPad has its advantages. But I can’t type any faster on the larger touch keypboard on the iPad than I can on the iPhone. So it’s good for short notes, but for any real writing or editing, it’s impossible. Yes, you can get an external keyboard–to attach wirelessly by bluetooth, or via a dock. But I don’t have it with me all the time, so time and again I find myself putting off some email replies or blog post comments etc. until I get to a real computer with a keyboard.

Now that I have the iPad I feel the lack of a keyboard is a huge cost. You can make up for it somewhat but it is a big limitation. I don’t think that will stop the appeal of these devices–they have their niche uses–but it could limit the broader use of them as laptop replacements. Which is not a huge problem, but there it is.

I often read in the morning when I wake up, and at night, in bed, on my MacBook Air. I was trying this with the iPad. It is very good for most of this. But not for all. Someone sent me an email this morning with a change to make on a file on a website. On my Air I would have opened Word, changed the relevant file, and uploaded the file using FileZilla to a website via FTP. I could do none of this easily on the iPad. I had to table it until later. Someone else sent me some graphic files to put on a website directory–on my Air I would have downloaded the attached file, unzipped it, opened it, opened FileZilla, and so on. Again, I had to table it.

Other thoughts:

• The powered belkin USB hub I use by my iMac–does not power the iPad. Some people are whining about this. I don’t think this is a big deal. Most new computers require their own power supply. Not a biggie.
• There are some initial glitches and bugs–scrolling problems in gmail online, etc. But these should improve quickly over time.
• Some people are complaining that some apps are–gosh!–$10, like Pages and Scrabble. It seems high compared to $1.99 for many iPhone apps, but compared to typical software prices it’s perfectly reasonable.
• It’s incredibly fast–when you are browsing and click the button to go to another web page, the one you have open just flies closed in like a millisecond. It’s breathtaking. I don’t think I’ve ever seen computers respond like this. They did that part right.
• The battery life is incredible. It’s incredibly liberating. Especially for those of used to dealing with the very limited batteries in laptops (especially the stunted Air). It’s not weeks like the Kindle–it’s only 10 or so hours–but then this does so much more than the Kindle. You can carry it around all day and plug it back in at night. It’s better than laptops, and smartphones, in this respect. I don’t think people care about being able to replace a battery like this.
• People whine that there is no multitasking. Well, there is limited multitasking. But the limits on multitasking help it achieve its wonderful battery life, and also its amazing iPhone-like stability. Even these things have glitches and crash, but compared to modern bloated operating systems–Windows, Mac OS, even Linux–the iPhone/iPad OS is bulletproof.
• Kindle and iBooks are both great book readers. Weird mismatched advantages/disadvantages: iBooks has in-app shopping, and cool page turning, and a dictionary, and is epub compatible, but it has no iPhone counterpart! (I’m sure Apple will remedy this soon); Kindle has Mac, PC, Kindle device, and iPhone counterparts, and whispersync, but no epub, no dictionary and no in-app shopping (but opening up Safari to buy a book is no big deal at all). Anyway, just get them both. Both are free.
• Various apps for media are great–movies, iTunes, photos, Netflix, USA Today, WSJ, Pandora, Sirius; there’s a cool picture frame app that lets you turn it into a digital picture frame display slideshow. The origami transition is fun.
• There is no heat at all coming from the device–cool as a cucumber. A nice surprise given that I could fry bacon on the back of my MacBook Air.
• The Apple case is simple, slim, elegant, ingenious. Protects it, serves as a stand (horizontal, vertical, and elevate for typing), while adding almost no bulk and weight.

One problem is I have gotten used to my MacBook Air over the last couple years. That computer is extremely light and small, very portable, and has a SSD drive so that it’s quiet, fast, and durable. The Air has problems: the battery life sucks, and it gets way too hot and then very sluggish. I have a feeling the next Air might improve all this. An improved Air may be close to being my perfect computer. If you could add a touch screen, and perhaps make the screen so that it could swivel around so you could use it in tablet mode. Should it be Mac OS or iPhone/iPad OS? I’m not sure. Not sure it matters, once apps for iPad mature. If you can get enough functionality from among the hundreds of thousands of sophisticated apps coming, iPad OS may be better–slimmer, faster, more stable, less battery juice used.

I am not sure if multitasking is really necessary on the iPad; not sure it would address the previous deficiencies as a laptop replacement. Even if I have a nice keyboard attached to it, I simply must have the ability to alt-Tab (or Command-Tab) and easily cut and paste between apps to get real work done. Maybe this doesn’t require real multi-tasking; maybe it just means that each app remembers its state and can open and close fast enough to simulate the multitasking effect, because the screen is hardly big enough for multiple windows to be displayed together anyhow. To do real work I need a keyboard, I need to flip back and forth between apps, easily cut and paste, and also, I need to be able to easily handle files–to save, download, attach them. In Mail on the iPad I could not even see how to attach a photo from the photo library. They will probably fix this, since there is obviously a way to do it–you go to Photos and send one as an email. I’m sure this will come over time.

As the iPad improves, it will become more and more of a contender to replace most or all of a laptop’s real functions. In the meantime it’s still a useful device. Yes, now you have a third or fourth device: a smart phone, laptop, desktop (maybe–they are fading away), and, between the first two, an iPad. So what. You sometimes carry a book, or a kindle. Why not an iPad? My iPad fits inside the little external zipper pocket of my briefcase without adding any noticeable weight or bulk, with the laptop nestled inside. Look, I was on the verge of buying a Kindle, but just hated the idea of monochrome, for heaven’s sake–my last monochrome computer was the Franklin Ace in 1984–green or amber, what’s your pleasure, sir? And the sluggish screen… lack of touch. Ugh. And no light! I know people who clip itty bitty book lights onto their Kindle. Ridiculous. A battery powered book reading device without a built in light? No way.

I prefer a color LED screen. People say Kindles are easy on the eyes don’t cause eye strain. What? I don’t get eye strain from computers. I don’t like having to turn on a light or clip on a light to the Kindle to read in a dimly lit room, I’ll tell you that. I’ve been reading books for months now on the Kindle app on my iPhone. It’s a bit small but it’s fine. And it’s got a built in light. So for book reading alone the iPad is almost worth it–though a bit pricey at $500. So it’s two or three times as expensive as a Kindle… but does so much more. Great games. Thousands and thousands of apps. Movies. iTunes store. Music (the speakers are surprisingly good on it). Photos. Calendar. Address book.  Apps, apps, apps. I am just starting to see how I’ll use this… I think I’ll use it often for family gaming, for reading books, around the house, when going to lunch. If I go on vacation or a business trip, I’ll probably take my laptop along still, unless I’m sure I have nothing complicated to do, and I’ll also take the iPad along. On the plane I’ll leave the laptop alone. I’ll keep the iPad out. I’ll probably leave the Macbook in the hotel, and take the iPad it’s so small and book-like that it’s so easy to do.

Another note: I am not a gamer (I had to go cold turkey on video and computer games in law school, as I was getting addicted to Zork and Robotron). But this thing is great for games. You know, I hear a lot of the old fogie and crusty types whining about how people are less social nowadays with being immersed in their computers. Nonsense. They are more social than ever. Just in different ways. They are writing more than ever–emails, blogs, etc. On vacation recently the kids with us and even the grownups sometimes used our iPod touches/iphones to play monopoly and scrabble and chess. With each other, over wifi. The new iPad has a great Scrabble app (only $10) that puts the whole board in front of you… and each player can use an iPod Touch or an iPhone as his private tile tray, networked via bluetooth with the iPad… you just flick your tiles up off the iPod touch and they appear on the iPad screen where you can play them. This may seem trivial but it is whimsical, fun, and creative. And what’s wrong with a dad playing Scrabble with his 6 year old on an iPad? I think it’s cool for a kid to know what bluetooth and wifi are. And this is just the beginning–that app was released the day the iPad was released. Who knows what else is in store for us with all the thousands of apps in development?

So… this thing is probably not a laptop replacement for most people. Yet. But it’s gorgeous and fun. It’s a winner. It’s great to see capitalism produce such great advances in technology.

[LRC]

“Political Correctness”

Re: In Case You Were Wondering

Uh oh!

From LRC 2007:

Swinkels and Hoppe on the Tacit Support of the State

Lew and Heroic Burgers

As noted here, “Ayn Rand’s newsletters used to end with a “Horror File” of monstrous but true quotations.”

Along those lines, it’s time to collect some choice trademark horror stories in one place. The main post will be here, on the Mises Blog, but I’ll cross-post the initial post here too. But look there for updates (or to add suggestions in the comments). (Update: I might as well also list here similar examples from patent, copyright, and even trade secret. See below.)

Trademark

As noted in Trademark versus Copyright and Patent, or: Is All IP Evil?, it’s not only patent and copyright that are unlibertarian and unjust. Modern trademark law is as well. I deal with tradmark rights on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, extensions of trademark law–rights against “trademark dilution” and cybersquatting, etc.–are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution.

But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of “consumer confusion” is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark “owners” to sue “infringers” (except perhaps as proxy for customers, when consent can be presumed or proved–as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer’s right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that “knockoffs” are usually not a violation of anyone’s rights: the buyer of a $10 “Rolex” is almost never defrauded–he knows what he’s getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.

The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.

In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):

• Court Says U Of Southern California Only One Who Can Use USC; Sorry U Of South Carolina
• Who Dat? America’s National Football League causes outrage over catchphrase ban
• What’s Next–Trademarking Language? Don’t be *Ridiculous*!
• South Butt David versus North Face Goliath
• Lou Carlozo, Teen’s charity name draws the McIre of McDonald’s, Wallet Pop (Jan. 17, 2010) (McDonadl’s claims Lauren McClusky’s use of “McFest” for the name of a series of charity concerts she puts on infringes its “McFamily” brand)
• Budweiser trademark dispute (see also Chip Wood, A Bully-Boy Beer Brewer, Straight Talk (Oct. 16, 2007))
• 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (Sept. 26, 2007)
• Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007)
• idem, Beemer must be next… (BMW, Trademarks, and the letter “M”), Mises Blog (Mar. 20, 2007)
• idem, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007)
• ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano,” I/P Updates (Feb. 27, 2008)
• Mike Masnick, Engadget Mobile Threatened For Using T-Mobile’s Trademarked Magenta, Techdirt (Mar. 31, 2008)

Patent

Taken (in part) from my article Radical Patent Reform Is Not on the Way, Appendix: Examples of Outrageous Patents and Judgments:

Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice):

• Amazon’s “one-click” patent, asserted against rival Barnes & Noble;
• Cendant’s assertion that Amazon violated Cendant’s patent monopoly on recommending books to customers (since settled);
• The attempt of Dustin Stamper, Bush’s Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims “a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities”;
• Apple’s patent application for digital Karaoke;
• the suit against Facebook by the holder of a patent for a “system for creating a community for users with common interests to interact in”;
• the “absurdly broad patent [issued to Blackboard] for common uses of technology if that technology is employed in the context of education” (see also Patent Office Rejects Blackboard E-Learning Patent One Month After It Wins Lawsuit, Techdirt (Mar. 31, 2008);
• Compton’s (now Encyclopedia Britannica’s) patent that “broadly cover[s] any multimedia database allowing users to simultaneously search for text, graphics, and sounds — basic features found in virtually every multimedia product on the market”;
• Carfax’s patent on a “method for perusing selected vehicles having a clean title history”;
• Acacia’s patent for putting a unique transaction number on a receipt;[26]
• Pat. No. 6,368,227, covering swinging sideways on a swing;

The Supreme Court, in the 1882 case Atlantic Works v. Brady, 107 US 192, itself lists examples of patents issued to “gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge … the simplest of devices.” These included

• a particular doorknob made of clay rather than metal or wood, where differently shaped doorknobs had previously been made of clay;
• making collars of parchment paper where linen paper and linen had previously been used;
• a method for preserving fish by freezing them in a container that operates in the same manner as an ice-cream freezer.
• rubber caps put on wood pencils to serve as erasers;
• inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser;
• a stamp for impressing initials in the side of a plug of tobacco;
• a hose reel of large diameter so that water may flow through the hose while it is wound on the reel;
• putting rollers on a machine to make it movable;
• using flat cord instead of round cord for the loop at the end of suspenders;
• placing rubber hand grips on bicycle handlebars;
• an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.

Below are a few notable or recent examples of large, significant, troubling, or apparently outrageous injunctions, damages awards, and the like:

• In Stent Patent War, Boston Scientific Caves (Again), Agrees to Pay Johnson & Johnson $1.725 Billion to Settle Three Cases;
• Qualcomm has been enjoined from importing chips that help conserve power in cell phones (discussion; latest developments). See also Eric Bangeman, ITC to Bar Import of New Handsets in Patent Dustup, ars technica (June 7, 2007); Nokia’s Patent-Licensing Case against Qualcomm Dropped by Dutch Court, engadget (Nov. 14, 2007); Broadcom Wins Major Injunction against Qualcomm, engadget (Dec. 31, 2007); ITC Upholds Ruling, Reiterates that Nokia Didn’t Violate Qualcomm Patents, engadget (Feb. 29, 2008).
• Texas-Sized Patent Win, Texas Lawyer (Feb. 21, 2008). A New Jersey doctor was awarded $432 Million as a “reasonable royalty” against Boston Scientific for infringing his “Method and Apparatus for Managing Macromolecular Distribution.”
• Smartphones Patented … Just About Everyone Sued 1 Minute After Patent Issued, Techdirt (Jan. 24, 2008).
• Farmer David Reaps What He Has Sown: A Patent Suit, Patent Baristas (Feb. 13, 2008) Even though “the practice of saving seeds after a harvest to plant the next season is as old as farming itself,” patents prevent farmers from saving patented seeds.
• Apple, Starbucks Sued over Custom Music Gift Cards, AppleInsider (Feb. 20, 2008) A Utah couple sue Apple and Starbucks over their “‘Song of the Day’ promotion, which offers Starbucks customers a iTunes gift card for a complimentary, pre-selected song download.” The suit is based on a patent on a “retail point of sale for online merchandising” which allows customers to buy a gift card from a brick-and-mortar store and then go home and redeem the card online.
• Apple Sued Over Caller ID on the iPhone, Techdirt (Feb. 27, 2008). The patent is on “matching up the phone number of an incoming call with a local contact database to display who is calling.”
• The new 802.11n Wi-Fi standard (which promises to significantly increase Wi-Fi speed and range) is in jeopardy due to patent threats. See Bill Ray, Next Generation Wi-Fi Mired in Patent Fears, The Register (Sept. 21, 2007).
• SanDisk Sues 25 Companies for Patent Infringement: “Suits have been filed against 25 companies by the SanDisk corporation this week, as the company looks to stop businesses from shipping products it alleges are infringing on its work. SanDisk has filed suits against everyone from MP3 player manufacturers to USB hard drive creators. The list of defendants is staggering, and MacWorld notes if Sandisk succeeds it could have repercussions outside of the courtroom.… The court … complaints could affect the prices and availability of products made by companies targeted in the suit if SanDisk wins and the companies are barred from importing products into the U.S.”
• Patent Office Upholds Tivo’s “Time Warp” Patent, EchoStar Not so Happy, engadget (Nov. 29, 2007); see also Tivo Inc. v. EchoStar Communications Corp. (S. D. Tex., Dec. 2, 2006); and TiVo Wins on Appeal: Permanent Injunction against EchoStar to be Reinstated, Patently-O (Jan. 31, 2008).
• Jacqui Cheng, U R SUED: Patent Holding Company Targets 131 Companies over SMS patents, ars technica (Nov. 13, 2007).
• The International Trade Commission (ITC) may ban imports of many popular hard drives that “are alleged to infringe on patents owned by California residents Steven and Mary Reiber related to a ‘Dissipative ceramic bonding tool tip.’” Jacqui Cheng, Hard Times for Hard Drives: US May Ban Popular Imports, ars technica (Oct. 11, 2007).
• The VoIP phone service Vonage may be put out of business by patents. Sprint recently won a patent case against Vonage in which $69.5 million was awarded in damages. Sprint had planned “to ask the court to permanently ban Vonage from using its patented technology,” but the case was subsequently settled for $80 million. However, in a separate patent lawsuit between Verizon and Vonage, the jury found that Vonage had violated three Verizon patents, and awarded Verizon $58 million in damages plus ongoing royalties. Vonage claims it has developed workarounds for two of the patents. See Kim Hart, Sprint Wins Patent Case Against Vonage: Reston Firm Awarded $69.5 Million in Second Blow to Internet Phone Company, Washington Post (Sept. 26, 2007); Peter Svensson, Vonage Settles Patent Suit with Sprint, BusinessWeek (Oct. 8, 2007). Latest: Vonage Settles with Verizon, Owes Up to $117.5 Million; Vonage, Nortel Call a Truce — No Cash Changing Hands, engadget (Dec. 31, 2007).
• Kinsella, Revolutionary Television Design Killed by Patents (2007).
• BlackBerry’s manufacturer, RIM, was forced to cough up $612.5 million after NTP used patent law to threaten to shut RIM down.
• Microsoft was on the receiving end of a $1.5 billion jury verdict for infringing an MP3 patent held by Alcatel-Lucent (which was recently overturned).
• After Kodak sought more than $1 billion in damages from Sun Microsystems for patent infringement, Kodak finally settled for $92 million. (And according to one colleague, the verdict resulted “in the immediate shutdown of Kodak’s entire instant photography division, with the immediate loss of 800 jobs. And, some say, the eventual failure of Polaroid due to lack of any real competition to keep them on their toes!”)
• In another recent case, Freedom Wireless obtained a $150 million damages award against Boston Communications Group, Inc., which at the time had revenues of only about $100 million. In this case, the judge also refused to stay the injunction issues against BCGI (and by extension, its customers) pending appeal.
• Smith International was forced to pay Hughes Tool Company $204.8 million for infringement upon Hughes’s patent for an “O-ring seal” rock bit, which led to Smith filing for chapter 11 bankruptcy protection (this was in 1986, when $200 million was considered a large patent verdict).
• As of March 2003, the top 5 patent infringement damage awards ranged from $873 million (Polaroid v. Kodak, 1991) to $204.8 million (Hughes Tool v. Smith International, 1986). The top 5 patent settlements ranged from $1 billion to $300 million. Damage Awards and Settlements, IP Today (March 2003); see also Gregory Aharonian, Patent/Copyright Infringement Lawsuits/Licensing Awards. Sadly, a $200 million verdict seems normal nowadays. The recent $156 million patent-infringement verdict against AT&T, for example — which could possibly be trebled by the judge — now looks like small potatoes.
• Other recent cases include a $1.67 billion patent infringement verdict in favor of Johnson & Johnson against Abbott; a $400 million settlement paid to Abbot, by Medtronic, regarding stent devices; and a $716 million settlement paid to Johnson & Johnson by Boston Scientific (cardiac stents again).

Copyright

Some of these are also listed in Reducing the Cost of IP Law:

• RIAA Wants $1.5 Million Per CD Copied, Slashdot (Jan. 30, 2008);
• Ford Slaps Brand Enthusiasts, Returns Love With Legal Punch, AdRants (Jan. 14, 2008) (Ford Motor Company claims that they hold the rights to any image of a Ford vehicle, even if it’s a picture you took of your own car);
• Jacqueline L. Salmon, NFL Pulls Plug On Big-Screen Church Parties For Super Bowl, Washington Post (Feb. 1, 2008) (NFL prohibits churches from having Super Bowl gatherings on TV sets or screens larger than 55 inches);
• Internet pirates could be banned from web, Telegraph (Feb. 12, 2008) (British proposal to punish individuals who illegally download music by banning them from the Internet); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, Utah L. Rev. (forthcoming; SSRN);
• Cory Doctorow, Infringement Nation: we are all mega-crooks, Boing Boing (Nov. 17, 2007);
• Court Says You Can Copyright A Cease-And-Desist Letter, Techdirt (Jan. 25, 2008);
• Kinsella, Battling the Copyright Monster, Mises Blog (June 19, 2006);
• dem, Copyright Kills Amazing Music Project, Mises Blog (Jan. 2, 2008);
• idem, “Fair Use” and Copyright, Mises Blog (Aug. 17, 2007);
• idem, Copyrights and Dancing, Mises Blog (Feb. 20, 2007);
• idem, The “tolerated use” of copyrighted works, Mises Blog (Oct. 27, 2006);
• idem, Copyright and Birthday Cakes, Mises Blog (June 16, 2005);
• idem, Heroic Google Fighting Copyright Morass, Mises Blog (June 2, 2005);
• idem, Copyright Gone Mad, Mises Blog (Apr. 14, 2005);
• idem, Copyright and Freedom of Speech, Mises Blog (Nov. 8, 2004).

See also:

• Joost Smiers & Marieke van Schijndel, Imagine a World Without Copyright, International Herald Tribune (Sat. Oct. 8, 2005);
• Jessica Litman, Revising Copyright Law for the Information Age, 75 Oreg. L. Rev. 19 (1996);
• Kinsella, Copyrights in Fashion Designs?, Mises Blog (Sep. 27, 2006);
• Kinsella, Britain’s Copyright Laws, Based on a 300-Year-Old Statute, Desperately Need Reshaping for the Digital Age, Mises Blog (Nov. 2, 2006).
• For a humorous parody of copyright abuses by the RIAA, see CD Liner Notes of the Distant Present, Something Awful (Jan. 3, 2008).

Trade Secret

Even trade secret law, the least objectionable of the four main types of IP, has been corrupted by the state.

[TBD]

[Mises; AM]

It’s widely believed–even by Nolan Chart libertarians–that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties. (See my posts Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism; Left Socialists vs. Right Socialists; Liberals vs. Conservatives; Conservatives and Liberals; Liberals and Free Speech.) This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.

A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place–after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791 [see The Unique American Federal Government and the work of Professor McAffee discussed in The Great Gun Decision: Dissent and in On States' "Rights"].

This is not to praise the right, of course, or buy into the notion that we can rely on the judiciary to protect our rights from invasion from their fellow state actors (see the quote from J.H. Huebert in Is Gay Marriage a Constitutional Rights?]. In fact, “The decision threatens similar limits imposed by 24 states.” This is because of the Court’s ridiculous “incorporation” of selected parts of the Bill of Rights (which applied only to the federal government) into the 14th Amendment’s Due Process clause (which limits the states) (see The Libertarian Case Against the Fourteenth Amendment). If the Bill of Rights were absent, and the Court had struck down McCain-Feingold on the grounds that it is ultra vires–beyond the power of Congressional legislation absent an enumerated power in the Constitution–it would be hard to argue that this “lack of power” grounds could somehow apply to the States–unlike the unique federal government, the states have plenary legislative power (see The Unique American Federal Government). For example, a federal law banning murder would also be unconstitutional since it is not authorized in the Constitution, but a state law banning murder violates neither its own nor the federal Constitution. The Bill of Rights, like the Constitution itself, has served primarily as a basis for expansion of federal power (see Rockwell on Hoppe on the Constitution as Expansion of Government Power). The Bill of Rights was a mistake (as was the one proposed in Iraq). The Constitution was a mistake. Secession from England was a mistake. Down with the criminal American state and its self-hagiographical “history”! (See Happy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!; ‘Untold Truths About the American Revolution’; The Murdering, Thieving, Enslaving, Unlibertarian Continental Army; Goodbye 1776, 1789, Tom.)

Update: Glenn Greenwald has an excellent piece on this case here.

[LRC; Mises]

A few related older LRC posts:

Re: Left Socialists vs. Right Socialists

Conservative Erick Erickson argues that, ironically, it’s Ted Kennedy’s fault that Obamacare may be dead:

Erick Erickson, the founder of the influential conservative blog RedState, is tying Republican Scott Brown’s victory in the Massachusetts special Senate election directly to the late Democratic Sen. Ted Kennedy, who held the seat.

Soon after Brown’s upset win over Democratic Attorney General Martha Coakley, Erickson said on CNN that if Kennedy, who had battled brain cancer, had not wanted to be a “martyr,” Democrats could have kept his seat.

“If Ted Kennedy had decided to resign, or retire, when he found out just how bad his health was, instead of wanting to be a martyr for the cause, the Democrats wouldn’t be in this position,” Erickson said.

HT Pat Tinsley, who writes,

I love it — Kennedy may have sabotaged his own beloved healthcare reform”!

Another irony in the Brown election is that a special election had to be held in the first place. The Democrats changed the state rule to prevent a sitting Governor from appointing the replacement to fill out the remaining term of a senator who left the Senate. Instead a Special election would be held. The change was made to prevent the then Republican Governor from filling Kerry’s seat when he left to assume the Presidency. Of course Kerry lost to Bush but the rule was never changed back and so they all had to live with the special election instead of having Deval Patrick be able to appoint a permanent replacement instead of the temporary Paul Kirk.

[LRC]

From LRC, 2005:

Re: Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism

Peter–the Barnett quote in your post is apt. If “judicial restraint” means a Rooseveltian judicial deference to unconstitutional New Deal legislation, then judicial restraint is not a good thing.

From the libertarian point of view, the federal Constitution as written is fairly libertarian, at least compared to the leviathan state into which the original central government has morphed. It is for this reason that we want judges to adhere to the strict text of the Constitution: because it is a way to help hold the federal government to its original, more-limited scheme. “Originalism” then–or opposition to activism–has primarily an instrumental value (as I argued in this Hastings Constitutional Law Quarterly review essay–which I wrote, coincidentally enough, after the journal approached me, at Professor Barnett’s suggestion). Because our Constitution is relatively libertarian, we want the federal government to abide by the limits the Constitution places on it. In such a context, activism is likely to be a lead to unlibertarian results because it will mean invention of new powers or relaxations on the limits placed on the state. We can hardly be surprised that the judicial branch of the state tends to decide in a pro-state manner; but to the extent judges feel bound by the text of the Constitution, the state’s growth will be somewhat impeded (albeit, one disadvantage of such as system is that giving some lip service to the “rule of law” cover or myth helps to legitimize the state’s actions).In my view, the libertarian must have a coherent and sound view of the federalist nature of the Constitution in order to have a sensible view on “judicial activism”. First, it should be recognized that the federal Constitution establishes the federal government and grants it only certain limited and enumerated powers; and for good measure–”out of abundant caution” (2; 3, pp. 76-77)–it places various (usually redundant) limits on the federal government, e.g. in the Bill of Rights. Judges take an oath to abide by the Constitution, and are members of one of the three co-equal tripartite branches of the federal government. They therefore have a constitutional obligation to refuse to enforce, to refuse to go along with or be part of–that is, to strike down–any federal law or action that is not authorized by the Constitution. Accordingly, a federal judge striking down a federal law that is not authorized by the Constitution is not being activist; he is merely doing his duty. He is not inventing law or rights; he is refusing to exercise a power not granted to the feds. And so, for example, Justice Thomas was right in Raich to refuse to stretch the interstate commerce clause to find a power granted to Congress to regulate purely local growth and consumption of marijuana. (I discuss some of this in my article on the Kelo case.)

Liberals call this “activism” but it is not. There is nothing wrong with a federal judge refusing to enforce a federal law that is not authorized by the federal Constitution. Liberals are purely results-oriented, unprincipled, and confused. They are socialists and for that reason do not want judges imposing constitutional limits on the federal government; so they slander it with the now-pejorative term “judicial activism.”

Conservatives, while having (in my view) better intentions, are if possible even more confused than liberals. When judges expand the scope of rights in the Bill of Rights to strike down (federal or state) laws on the basis of these rights–such as abortion laws, sodomy laws, etc., conservatives call this “activism”. Conservatives are confused on both the nature of federalism, and the nature of the constitutional limits on the federal government.

It is true that if the federal government were one of general police powers, limited primarily by listings of rights in a Bill of Rights, then if a federal judge were to overturn a federal law on the basis of a dreamed-up right not found in the Constitution, this could be called “activism”. (This type of activism, however, I daresay most libertarians would not mind too much–infighting and squabbling among the three federal branches that impededs federal action is okay by me.) However, this criticism ignores two things. First, there is a ninth amendment that says the listing of rights in the Constitution is not exhaustive. This gives a plausible basis for a federal judge striking down federal laws even on the basis of unenumerated rights, so long as he has a reason for doing so–e.g., if he can show that the right is implied by others, historically part of our society, etc. Second, listed rights are technically irrelevant; the federal government is one of enumerated powers. Federal laws establishing a religion; censoring free speech, outlawing abortion, murder, or rape; criminalizing marijuana–all these would be unconstitutional simply because there is no power granted to the feds to regulate these fields. The federal judge need not invent a right to privacy or even read the Bill of Rights to strike any of these laws down. It does not take any activism or any invention of rights to overturn these federal laws.

Review by federal judges of state government action and laws is quite another matter, however. For the federal judges to review and overturn state laws, the Constitution must grant a power to the federal government to do this. The big problem with our Constitution is that the feds have pushed the outer limits of the grants of power so much that they have virtually unlimited police power to regulate anything (like states). So the original primarily limit on federal power–the scheme of protecting rights by means of the structure of limited and enumerated powers (2, 3)–has fallen away. This has caused judges looking for ways to strike down federal laws to rely more and more on the back-stop mechanism: rights listed in the Constitution. Since the set of rights is incomplete, however, when judges find a limit on federal law that is not based on the text of an enumerated right, it looks like they are being “activists” and making it up. (They could find some basis for new rights in the Ninth Amendment, but this is largely ignored.)

The problem with this is that it gradually makes the listing of rights in the Constitution appear to be a source of federal power–specifically, an authorization for federal judges to overturn laws that violate these rights. If there were no listing of rights and only a clearly spelled out enumerated powers scheme, it would be clear that a federal judge can strike down federal laws that are not authorized by a grant of power; and it would be difficult for the federal judge to use similar reasoning to strike down a state law on the same basis. After all, the state law does not need to be authorized by a grant of federal power; states are separate sovereigns and have plenary police powers, as defined by their own state constitutions.

(As an aside: yet another problem with the idea that the protections of rights in the Constitution should “apply” to the States is this: The federal Constitution contains various “limits on federal power”: these come in the form of listing of rights (e.g., the Bill of Rights); presumptions and rules of construction (e.g., the Ninth and Tenth Amendments, which emphasize the limited-powers nature of the federal government); and the failure-to-grant-a-power, i.e., the Constitution’s rights-protecting enumerated powers scheme or structure (2, 3) itself. A federal law against murder is as unconstitutional as a federal law establishing a religion. Thus, there is a lack-of-federal-power to regulate both murder and religion; implying that, from the federal point of view, there are in essence correlative rights to freedom of religion and even to engage in murder, in a sense. So if you apply these “limitations” to the States, you would have to strike down state laws against murder, rape, robbery — they would be as unconstitutional as federal laws against murder. The entire federal scheme is designed to relate to a government of strictly limited and enumerated powers; it just does not make sense to use it as a way of limiting the states, which have plenary police power.)

But when federal judges come to rely primarily on an incomplete and malleable set of rights to strike down federal laws, they tend to view them as independent grants of power. And then they use them to strike down “bad” state laws that violate these rights. In this way, the mistake of listing rights in the Constitution–rights which meant only to emphasize the limited nature of the feds’ powers–has been turned on its head to actually end up granting power to the feds to oversee state action–under the guise of the doctrine of “selective incorporation” dreamed up decades after the Fourteenth Amendment’s illegal “ratification.” If you want an example of bad “judicial activism,” it is precisely this: the Court’s craven refusal to abide by federal enumerated power limits over the decades, letting Congress and the Executive Branch assume ever more powers; then falling back on the safety measure of rights, and inventing more and more of them, and then, applying them willy-nilly to both the states and feds, justifying this on a dishonest and incoherent theory based on an illegally ratified amendment which was meant primarily to prevent states from discriminating against freed slaves.

Or, as I wrote here,

In other words, the limits in the Constitution require a federal judge to strike down, in effect, unconstitutional federal law, and also requires him to recognize he has no jurisdiction over many (unlibertarian) state laws. To call for a judge to “believe in limited government power” lumps in state and federal power, thereby asking the judge to treat dissimilar situations in the same way. It is a call for the judge to, on the one hand, follow the Constitution (or a libertarian interpretation of it) to strike down bad federal law; and to disobey the Constitution to strike down bad state laws.

The bottom line, for me, is this. Barnett is correct that federal judges should not give Rooseveltian judicial deference to federal laws that are not authorized by an enumerated power in the Constitution. Federal judges should readily strike down federal laws that are unconstitutional–that violate our rights (rights implied in the enumerated rights, in the ninth amendment, or even in the rights-protective scheme of enumerated powers (2, 3) of the Constitution). But this position should be mistaken–as I believe it is by many libertarians who fail to adequately distinguish between the Constitution’s limitations on the feds, and the states–as implying that federal judges should be equally “activist” in reviewing state laws. To be “activist” in reviewing federal laws is a federal judge’s job; it is required by his oath. A federal judge who is an activist in this way–a “federal law activist”, if you will–is following his oath by refusing to aid and abet the federal government from acting beyond its power, or ultra vires. However, for a federal judge to be “activist” in reviewing state laws violates his oath, because this requires him to act beyond his constitutional powers.

In short, what we should be in favor of is federal judges always respecting the limited nature of federal power, in all their decisions. In reviewing federal law, this means overturning laws that are not clearly authorized by an enumerated power. In reviewing state law, this means refusing to overturn state laws where there is no clearly delegated power to do so.

Further Info

• More Fourteenth Amendment and Federalism resources
• Libertarian Centralists
• A Libertarian Defense of ‘Kelo’ and Limited Federal Power
• Barnett and the Fourteenth Amendment

From LRC 2005

The Iraqi Bill of Rights is Here!!

Looks like they blew their “opportunity” for limited government.

From LRC 2008:

The “deeply dishonest” opponents of the President…

From LRC 2007

Neocons Hate International Law

Some spam I received a while back had this quote in it:

While scanning files a while back in the process of going paperless, I came across a one-page Reading List, “Suggested by C. H. Murphy, Jr., to El Dorado High School students during National Library Week, April, 1964. I can’t remember where I got it, but reviewing it, we can see the times certainly have changed. Most college kinds now have not read much of the material listed on it. But at least they have advanced video games and cell phones. (And here is a National Review Reader’s Guide for the Intelligent Layman I was sent a long time ago.)

[LRC cross-post]

In a previous post, I noted the arbitrariness of copyright law in prohibiting editing a DVD to take out objectionable scenes, when presumably it would be legal to accomplish the same thing by other means–e.g., as I pointed out in a legal forum, by providing instructions to users to use to program a special DVD player that edits out the bad scenes “on the fly” in the user’s home.

Propaganda cartoon produced by Harding University, Searcy, Arkansas, 1948, warning of the dangers of socialism–which is refers to obliquely as “isms”. It’s a bizarre combination of pretty explicit anti-communist, anti-statist messages, plus a decent–if airbrushed–promotion of an idealized version of American capitalism, mixed in with endorsement of maionstream welfarism (unions, right to strike, etc.). (Google video version.)

[LRC cross-post]

Recently Walter Block was on a TV show run by black power advocates. He thought they were going to discuss the Katrina hurricane disaster in New Orleans, but the discussion ended up focusing on racism and a variety of other issues. Video; audio only.

It is one of the most surreal and fascinating viewing experiences I’ve had in a long time. I literally spit my bourbon out on my laptop 3 times. Such as when Walter had to answer the question about the turbo-diesel Chrysler; or the be-doo-ragged guy who insisted North Korea was doing better than South Korea–you can’t be sure whether the guy is just confused, or whether that is actually his view. Walter is so into ideas, and so sincere, he’s actually having a serious intellectual conversation with these guys–and it’s kind of interesting, as much as they fumble around and are uninformed by the kind of academic and economic and political theories Block just unabashedly hurls at them, they are somewhat sincere and earnest, and for the most part really listening to him, unlike most “normal” “mainstream” audiences or hosts. What a great video! Just fast forward past the first 15 minutes or so until Block starts talking.

These and other Block TV and radio appearances and debates can be found here. In addition to the one linked above, Block also highly recommends the one on WalMart and also his debate with Richard Epstein.

[LRC cross-post]

At the recent CES, Intel gave a demo of its vision of a future smartphone. This reminded me of my 2004 LRC post, The future of technology, about an NTT DoCoMo video forecasting the future of mobile communications. I’ve updated the links in that post; it’s interesting to see the forecast for the 2010s made in the early 2000s (NTT DoCoMo Vision 2010 video, on YouTube here); the most recent DoCoMo video I could find is The Road to Hokusai’s Waterfall. One interesting thing about these videos is they illustrate the Austrian view of forecasting and certainty. As noted in Verstehen and the Role of Economics in Forecasting, or: If You’re so Rich, Why Aren’t You Smart?, the future is uncertain, but not radically so. We can know some things about the future, so that we are not faced with radical, kaleidic uncertainty; but the future is not perfectly predictable either. Both the ability to make some predictions, and the inability to make perfect predictions, is illustrated in the 2004 technology forecast of 2010.

[LRC]

The future of technology

On today’s Slate Political Gabfest, the liberal hosts Emily Bazelon and David Plotz are explicitly in favor of privacy-invading body-scanner technology. Consider this appalling interchange:

Emily Bazelon:

I’m all for these body scanners. I don’t care at all about the privacy violations associated with them. … Will Saletan <laugh> wrote a great piece that had the headline or the sub-headline, you know, “Let’s see your scrotum if you want to get on an airplane” [William Saletan, "Show Some Balls" (subtitle: "Want to get on an airplane? Let's see your scrotum."), Slate (Dec. 30, 2009)], which seemed completely fine to me … but maybe that’s just my own sense of … that it doesn’t feel like it’s something real that’s at stake here.

David Plotz responds:

“Right. Totally. You know, I’m for a body scanner if it doesn’t add five minutes to my journey, and, when you add five minutes to your journey, when you add five minutes to everyone’s journey, it costs us, as a society. And [I'm in favor of body scanners], if these machines are not hideously expensive.

Emily: “Right. I’m with you. … I think that we do, perhaps, agree about this.”

Just to be clear: as noted in If you know this woman, tell her that she’s naked on the Internet, this (image below) is what the “pro-civil liberties” modern liberals are in favor of. [Note: the images are not genuine TSA scanner images, but based on stock photos of a model [NSFW], simulating what we can expect result from the new body imagers.]

See also: Electronic Privacy Information Center, Whole Body Imaging Technology (“Backscatter” X-Ray and Millimeter Wave Screening); Airports set to become primary peddlers of child porn; and Admitted: Airport Body Scanners Provide Crisp Image Of Your Genitals.

[LRC]

from LRC 2003:

Punishing Politicians

from LRC 2003

Breakin’ the Law

from LRC 2003

Poodles Bite

[An edited version of an email I prepared and sent to friends shortly after Christmas, 1998. Before 9/11/2001, when the world was still innocent. Sigh.]

So our Cocker Spaniel, Muffy (yeah, that’s her name, what of it?), kicks the bucket a couple years ago [around 1996], when we lived in Philly. Cin loved that dog, I gave her to her back in college, in 1989, as a present. We buried her in Great Valley Pet Cemetary. Putting the rose in her little paws was too much to bear. I paid $400 for the hole in the ground but I was not gonna shell out $400 more for a coffin. Nosirree. I’m not some stupid, soft, manipulable yuppie. In fact, I insisted on carrying her out of the vet’s office, after they had to put her to sleep, in the black Hefty bag I had brought along to protect the car seats on the way to the pet graveyard. It was a pitiful scene, as wife and I walked out in tears, with our poor dead Cocker (nestled in a Hefty bag) in my arms. We made such a commotion and upset the other patrons waiting to get FiFi’s annual shots, that they didn’t even make us pay for the euthanasia (ohhhhh, but someday, I tell you, SOME DAY, we will pay for all those youths in Asia). I showed them. Or maybe, they were content with the $1300 we had shelled out the preceding 6 days on ultimately ineffectual Cocker Spaniel dialysis treatment.

Anyway, this is not about Muffy [another good story about her, when I can find it]. It’s about the next phase: standard poodles. A whole new chapter in life. [One that just forced me to buy a king-sized bed, dammit.] Ever since Muffy died we are this DINK couple with no dog hassles. But Cin breaks down and eventually has to get another dog, of course the most expensive dog on the planet, a “well-bred” standard poodle. She names her Sophie, and she’s now about 8 months old.

Well, lo and behold, of course, Sophie turns out to be a rare poodle with hip dysplasia, so of course we have to get this hip surgery done on her that costs more than my parents’ first 3 cars.

And then as a consolation prize, the breeder gives us for free a year-and-a-half old standard poodle, Anna Belle, which is actually Sophie’s aunt. Anna Belle (aka Big Dog) is physically healthy but is psycho dog: she runs from her own shadow. [Another story about her later.] Sophie, I thought, was physically defective, but at least, sane.

So we are in Baton Rouge on a Sunday night after Xmas. Cin and I, and her brother (we’ll call him Skid) and his wife (we’ll call her Smidge), are visiting in the living room of Cin’s dad’s house. One of them insults my poor poodle Sophie, for limping due to the recent hip surgery, and I said, “No, she’s a love-dog, a good dog,” and reach to pick her up and place her on my lap.

Unfortunately, I must have twisted her bionic leg the wrong way and hurt her badly, for she freaked out and attacked my face like a bobcat, with an ear-rending yelp. I could feel her teeth sink into my upper lip like a hook in blubber. Meanwhile I’m trying to set this squirming, yelping, snarling, pain-wracked poodle on the ground without re-injuring her $6 million leg, and she limps off, I guess dazed that she had just bitten her master and best friend. Until then she had never hurt a flea.

My head is in my hands and I feel and taste blood gushing out. Smidge says, “Are you okay?”, to which I say, quietly, “no,” trying to avoid vertigo.

So then we see this gash on my upper lip that is about 3/4 inch long and 1/4 inch deep, from about nostril to lip edge. There are other assorted scratches and cuts, inside and outside the mouth, but the most serious is the big one that makes my lip look like one of those little football-shaped rubber coin purses the banks used to give out for free that opens with a big slit when you squeeze on its sides.

So I’m in the bathroom looking at it in the mirror, and we are trying to decide about whether to go to the emergency room or not (it’s 10:00 at night), and I feel cold, clammy, nauseous, the feeling right before pass-out. So I lay on the floor while Skid fishes for my insurance info through my wallet, and off we go to Our Lady Of the Lake (OLOL) hospital, me holding a ball of soggy paper towels enwrapping a bunch of ice, against the lip. That was Smidge’s idea. I said, “Hey, what’s the point of this ice, Smidge?”–or rather, I mumbled it out the left, unmarred, side of my mouth–because I’m always skeptical of the pseudo-scientific holistic treatments. I figure she would know the answer, being a 4.0 ChemE and all. And she says, “To keep it from healing so it won’t hurt so bad when they rip it open to clean it out.” Ah. I see. You’re smart, Smidge.

Now we decided to go to OLOL instead of the equidistant Ascension Parish ER, even though the latter is quicker, because OLOL is supposed to be better. Maybe it was a good idea but let’s just say Cin and I got home at 3:30 a.m.

Anyway we get to the OLOL ER, which Skid knows how to find with the back of his hand because he’s been there numerous times for over-drinking at the bowling alley, his dad’s nosebleeds, and whatnot. Okay, so we all walk in, and on this Xmas weekend Sunday night at 10:30 p.m., the ER is packed. Some clerk who admits us wants to see my wound, to triage the damage I assume, so I remove the ice pack and poke my tongue behind the cut so it opens real wide so he thinks it’s really bad, to increase the chance he’ll put me in the high-priority line instead of at the bottom of the line. Of course, I am fuming that we have to wait so long, there is a fast track for more high-priority cases, and there is of course the immediate track for ambulance patients, but there is nothing for people willing to pay twice as much! Where’s the justice in this world.

So he goes, business-like, “What happened?”, and I say, “uh, dog bit me.” Why does he need to know it’s a poodle, you know? How’s that relevant?

Then he asks the question I’d been dreading, “What kind of dog?”, to which I mumble, quietly, “… poodle… — but a standard poodle, a big one.” Cindy happily chimes in, the evil tormenter, “But she’s only a puppy“. So the guy makes the call, on the spot: “poodle bite, small laceration on the lip“. SMALL laceration? And did he have to specify the type of dog? Where in God’s name is the relevance of this?

Anyway then I am shuttled off to this young black lady nurse/registration person. Whatever the hell she was. The one with the power of God over me at this moment. Cin handles most of the info input, with me mumbling the answers to the nurse’s question and Cindy interpreting. Remember, I’m talking through a soggy napkin ice ball, dripping bloody ice water all over my pants and the registration lady’s desk.

When we give her my law firm’s name in response to her query over place of work, she then says, “And what do you do for them?” (why in hell this is relevant I don’t know); Cindy and I both simultaneously answer, “Lawyer”. And the nurse lady rolls her eyes at this, like, “Oh, big woop, Mr. Big lawyer man, eh, well, it ain’t gonna help you heal from that poodle bite any better!” And later on she passes a pad of microfiched fine print to sign off on, so I guess they can donate my left [censored, but rhymes with tut, or besticle] to charity if I sneeze or something, and she says, “This form explains — oh, I’m sure you can understand it, YOU’RE A LAWYER AFTER ALL!” Ha, ha, lady, just run my insurance papers through and KEEP YOUR PIE HOLE SHUT!

So this being a religious hospital, she then says, “Religion?” and Cin looks sideways at me, and I look back at her, and we both know Cin’s not going to answer something pointless for me like “he’s a semi-ex-Randian secularistic rational skeptic” etc. Now I was raised Catholic and this is a Catholic hospital. But Cin and I were married in her church, Methodist. So Cin just answers, “Methodist.” What?! NO WAY I’m gonna be called a Protestant! We Catholics (cultural ones, anyway) have to keep our roots alive! I’d rather not-be-Catholic than not-be-Protestant! So I mumble through my soggy ice pack, “Catholic!” and the lady looks at me patronizingly, “Oh, no, honey, you don’t have to be Catholic to come here.” Like she’s caught the little Protestant lying to get into the uppercrust Catholic hospital. To which I firmly said, “I AM Catholic!” So there. That really made her believe me. Meanwhile Cin’s rolling her eyes, as if to say, you are getting your lip sewed up, why do you care what box this menial clerk marks on an irrelevant form?

Well, 4 hours later, at about 2:30, our doctor, a Boy George look-a-like, finally attends to me, gives me a damn tetanus shot (that arm still hurts), and sews me up. [It always sucks when you are asked by the ER when you last had a tetanus shot, and you can never remember exactly, so they always give you one just to be sure.] I mean, here I am, stitches in my lip, probably a permanent scar which will hopefully enhance my looks a la Harrison Ford’s chin scar, and paying multi-thousand dollars in upkeep on the damned poodle that did it. I figure that in the future, if it scars and I am questioned about it, I can just say, “Let’s just say it was because of a bitch named Sophie, and leave it at that.”

From LRC 2003

Anna Belle (da poodle) ‘n Me

Anna Belle (da poodle) ‘n Me

[From about February 1999]

So the other day, Cin’s sister Amy and her family were visiting. On a fine Saturday morning, I decide to take my 6-year-old nephew, Thomas, and our standard poodles Sophie & Anna Belle for a walk to a park a few blocks fom our house. Well, I had to walk the dogs anyway, and it was an excuse to have a cigar. And I get brownie points w/ the wife and sister-in-law because it looks like I’m bonding with my nephew at the same time. A win-win. Also have a coffee travel mug full of beer–don’t want my WASP neighbors to sneer at me. Or my wife and sister-in-law. After all, this is like 10:30 in the morning. Multitasking, man. Made cell phone on the way there, and have a comic book stuffed in my pocket, just in case I get bored. Fat chance.

Arrive at the park. I tie the dogs up to a table so I have enough hands free to fire up the cigar and drink the beer. Maybe even read the comic. Then Thomas acts up–damn, the kid wants attention; why’d I bring him?–so I give him Sophie to walk around the little jogging path in the park. Off he goes, tugging on Sophie’s leash. But of course, he has difficulties so I need to interrupt my solitude at the table and go help him. I leave Anna Belle, our psycho poodle, tied to the table. I need a couple hands free for other things, plus I don’t like her and she doesn’t like me. She’s terrified of me, in fact. I mean I can stomp my foot when she walks past me to go outside and she’ll spray the wall with flecks of dog mess. She’s been afraid of me ever since we got her, at 18 months old. She’d be raised as a show dog, and being naturally shy, I think that traumatized her. She bonded with the wife but her fear of me won’t subside. Psycho dog, man.

So I go over to Thomas to help him walk Sophie around this little park. I’ve got the beer in one hand and a lit cigar and leash in the other, and try not to glare at Thomas for ruining my little cigar-beer-comic moment. About this time, Anna Belle’s abandonment fears kick in, and she worms her way out of the collar, unbeknownst to me. Although she hates me, she sees me and Sophie across the park, so naturally she heads towards the familiar.

As I’m trying to puff the cigar with one hand and avoid spilling the beer in the other when Sophie pulls on the leash, I see a bit of movement out the corner of my eye. I look up, and see Anna Belle, about 150 feet away, running towards me across the park at about 40 miles an hour like a cheetah chasing a gazelle. I mean she is booking it. I had forgotten all about her–can only multitask so much, you know.

The dog is loose. Uh oh. Time slows down, and I instantly realize she somehow escaped being tied to the table–maybe the leash broke. I also realize that although she is running toward me now (fear of abandonment), when she gets close she’ll realize what she’s doing and turn around and run away from me. She always runs from me, looking for Cindy. But that would mean her possibly running around the neighborhood and getting hit by a car, while I’d be unable to chase her anyway due to having 6-year-old Thomas and Sophie to watch. Cin would not be happy with if that happened, especially after she smelled cigar and beer on my breath. She’d find some way to blame it on those. So in that frozen moment of time I realize I have a delicate job of grabbing her when she gets close enough, before she runs away, but not making a move too soon and spook her early.

As she approaches, still in slow motion, I start to prepare… keeping an eye on her I hand Sophie’s leash, the beer-laden coffee mug and cigar to Thomas, telling him to hold them and don’t move, as I start to crouch, ready to spring… I know, I’ll just grab her collar. That usually calms her down. Once you have that, she obeys.

She gets about 5 feet away and starts to sit down in her terrified way, and I gingerly approach her … and she gets the spooked-horse white-eye-rolling they get when they see a bear, and she starts inching up to run away–and I lunge for her, and grab the collar–but there’s no collar there! That’s how she got out–she had backed out of it when she was tied to the table. So there’s nothing to grab this wiry psycho dog by. So basically I semi-tackle her and grab her neck, which makes her go completley crazy. I mean she is snarling, trying to bite me, trying to get away, and I’m wrestling her down, pulling her by her ears, etc., hair is coming out of the ears, she is crapping all over herself, it’s flying up in the air. I’m trying to avoid her snarling bites and to not hurt her, all without letting her go.

Time returns to normal speed as I reach a point of equilibrium and have her pinned to the ground like a high school wrestler, and hold her still until she calms down, in a position where she can’t escape but also can’t bite my face off. The only sound is the soft noise of little turdlets that she’d sprayed into the air thudding onto the grass around me, and Thomas, who is holding Sophie and my cigar and beer, yelling “Poo Poo! Poo Poo! Poo Poo!”

Eventually I have Thomas set down the adult paraphernalia and go retrieve Anna Belle’s leash and collar from the picnic table. Safely back at home, I delivered a sufficiently edited version of the story.

Have I mentioned my growing aversion to poodles?

***

Coda: Sophie died at 3.5 years of age, about 2 years ago. After my wife got tired of my boo-hooing for a month, she dragged me out once again to Candy Land Farm up in Spring Texas, where we bought the best one yet, my little buddy Boudreaux, a white male standard poodle.

From LRC, 2003

Things not to say to a first-time mom

My wife and I saw Avatar this weekend in 3D. Here’s the verdict: four out of four stars. Absolutely amazing special effects–best I’ve ever seen; fun story; all in all a very fun, nice movie.

And at its core it was very libertarian: it was about a group of people (the Na’vi) defending their property rights on the world Pandora from aggressors (the human invaders), and about one of the humans (a soldier named Jake Sully) deciding to join and help the right side. Sure, the movie has some stilted dialogue in parts, and a few cliched scenes (I liked how the evil military commander referred to their outrageous assaults on the Na’vi as “shock and awe,” but his telling the troops that they would “fight terror with terror”–when the Na’vi had not really been shown to have done anything characterizable as terrorism–was a bit of a stretch in its attempt to dig at the current American “war on terror”), but overall it was great and fun, and libertarian. And the passion and vision and craft that has gone into this movie is amazing to behold. Cameron is to be commended for this great work of art.

Ignore the cynics–such as Peter Suderman on Reason‘s Hit & Run blog who accuses Avatar of “anti-corporate clichés and quasi-mystical eco-nonsense”. Nonsense. Libertarians are not anti-environmentalism, for one; property rights are the only way to protect the environment. As for “quasi-mystical”–I can’t say much without spoiling, but the various beliefs of the Na’vi are perfectly grounded in reason and reality, as the movie shows. As for anti-corporate–nonsense.

And the “corporation” here is basically a mini-state, or an arm of a state–it has an army going around killing and destroying (Lester Hunt makes this point here). In fact, in the review of the leftish Mark Kermode of the BBC, he just calls the bad guys the military; even he is not taken in by the corporate facade. And the libertarian hosts of Free Talk Live (12/19/09 episode) get it right too: the plot is about property rights. In particular, the property rights of the Na’vi, in an established tree-city that they have clearly homesteaded. The Na’vi are not just some uncivilized savages as some curmudgeonly reviewers imply; they live they way they do because of the wondrous bounty of their strange world and some unique features it has–which, again, I can say little of without spoiling, but suffice to say it’s grounded in reality and extrapolative science fiction, not some quasi-mystical nonsense. They even have a sophisticated homesteading technique worked out for ownership of the wild, pterodactyl-like creatures known as Banshee or ikran. In addition, the main Na’vi character, Neytiri, although she is betrothed to another Na’vi, is permitted to change her mind and choose someone else–respect for individual choice and autonomy.

As for the 3D: the 3D was well done, not over-used, and did add depth to the picture. It’s worth seeing in 3D if you go to the movies. That said, I don’t think it adds much. Avatar will still be great on HD home theater systems in Blu-Ray or HD. Note: we intentionally avoided the IMAX version because I assume the image has to be cropped (left and right sides chopped off) to fit IMAX’s different aspect ratio.

[Mises; LRC]

In the Dec. 18 Slate Political Gabfest, the three liberal hosts discuss a case (also discussed here by host Emily Bazelon) of whether a high school could “punish” a student who posted a YouTube video mocking and insulting a fellow student of the same high school. The mean girl was suspended for 2 days (some punishment!) and of course sued for violation of her “right to free speech.” The case apparently turned on whether the mean girl’s out-of-school actions “caused a substantial disruption of the school’s activities.” And the Slate pundits seem to have no problem with this framing of the issue.

Incredible as it may seem, the quite obvious solution never seems to occur to them: and that is that the issue is now what the school’s policy should be, but what the law should be. A school has the right to allow or disallow, to suspend or expel, or to set rules for same, on any grounds they want. If a school chooses to permit students to use its private property only if they comply with certain rules of conduct (whether on or off campus), that is the school’s right. Period. It has nothing to do with free speech. Free speech only means the state itself may not use force of law to censor or regulate speech. The right against the state committing this form of aggression has somehow been transformed into a right to use others’ property even if they don’t want you there. (Arguably if the school was public, some of the restrictions that apply to the state could apply to it; I can’t tell whether it’s a public school here or not, but apparently neither do the Slate pundits, who seem to think this is irrelevant, and would favor such a lawsuit even against a private school.)

[LRC]

It’s no wonder that Obama sounds no different than George W. Bush on war: the left are just as warlike as the right. Example: On the December 11 Slate Political Gabfest, the hosts discuss B. Obama’s Nobel Peace Prize speech, including his remarks that we should honor American soldiers “not as makers of war, but as wagers of peace.”  David Plotz (around 25:00-25:45) says:

you may want, or think, that US [soldiers] are the best killing machines the world has ever seen–and, I certainly hope that they are–but the fact is that most people in the US military don’t spend their days killing people.

[LRC post]

This Huffington Post piece by Alan Kaufman, “Google Books And Kindles: A Concentration Camp Of Ideas“. I thought this piece was a joke at first, but realizing it’s not only reminds of how terrible the left remains. Utterly hostile to technology, commerce, progress, industry, individuality, freedom, and modernity. A few choice sentences are enough to turn one’s stomach:

When I hear the term Kindle I think not of imaginations fired but of crematoria lit. And when I hear the term “hi-tech” I think not of helpful androids efficiently performing household chores or light-speed rockets gliding seamlessly through space but of the fact that between 1933-45, modern technology was used to perform in ever more efficient ways the mass murder of six million of my people. The instruments of so-called progress, placed in the hands of the modern state, disappeared six million Jewish men, women and children, into a void from which they will never return and in which a majority of them remain forever unidentified. This was done in the name of progress by means of technology for the creation of a better world.

The Nazis often were, by their own lights, well-intentioned idealists working for a better tomorrow. And their instrument was modern technology, aspects of philosophical and aesthetic modernism and the old religious concept of supercession implicit in the Christian notion of progress. Jews were outmoded, useless, they said. Most high level Nazis, like Himmler or Heydrich or Eichmann, did not feel visceral hatred towards the Jew. Rather, they looked upon them coldly as something that simply needed to disappear so that the new life could get on its way. And the means by which they sought to do so was first through a propaganda campaign that portrayed Jews, in Wagnerian terms, as a drag on the visionary energies and bursting vigor of the new Aryan man, and then by the implementation of this decision to eliminate Jews through ever more sophisticated state corporate and scientific technological means. And yet, during the war crime trials at Nuremberg, while Nazi Jurisprudence was tried and hanged, Nazi technological attitudes were not put on trial.

… The hi-tech campaign to relocate books to Google and replace books with Kindles is, in its essence, a deportation of the literary culture to a kind of easily monitored concentration camp of ideas, where every examination of a text leaves behind a trail, a record, so that curiosity is also tinged with a sense of disquieting fear that some day someone in authority will know that one had read a particular book or essay. This death of intellectual privacy was also a dream of the Nazis. And when I hear the term Kindle, I think not of imaginations fired but of crematoria lit.

[Hat tip to Brian Martinez; LRC cross-post]

From LRC, 2004

State and Religion

From: Healy on States’ Rights and Libertarian Centralists, LRC blog, 2005:

In Gene Healy’s blog post about Liberal Federalism [archived here; also here--see below], he notes, “I’d like to think that the Republican assault on federalism would lead to a resurgence of decentralist liberalism” (emphasis added). As I commented there– it would also be nice to see a resurgence of decentralist libertarianism too.

[Update: see Healy versus Bolick and the Institute for Justice]

Healy, a Cato Senior Editor, is a great opponent of “libertarian centralism”: see Healy’s great articles: States’ Rights Revisited, from The Freeman, and the following 4 articles from LRC (all linked at his LRC archive) : Contra Centralism (libertarian states rights scholar Gene Healy takes on Clinton Bolick, Roger Pilon, and John McClaughry, advocates of liberty through federal power); Roger Pilon and the 14th Amendment (Gene Healy, the libertarian legal scholar who’s brought sanity to discussions of an evil amendment, continues his work); Libertarian Reflections (Gene Healy on Waco, Paul Johnson, neocons, war, and left-libertarian nonsense); and The Squalid 14th Amendment (ratified by trickery during the federal military dictatorship over the South, this treacherous appendage to the Constitution is an attack on liberty and its American political foundation, states rights); see also my pieces: Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, Barnett and the 14th Amendment; and Happy Bill of Rights Day — The Problem with the Fourteenth Amendment (which contains links to other articles on this). See also the HNN discussion thread Should We Celebrate Enforcing the Commerce Clause against the States?,, in which some libertarians oppose the notion of federalism (discussed in Libertarian Centralists and Europe).

***

The link to Gene Healy’s blog post about Liberal Federalism is messed up — it’s archived here; also here, and pasted here:

Liberal Federalism

Franklin Foer has a piece in the NYT Book Review about liberals’ newfound interest in federalism. It’s a nice trip down memory lane, even if, absurdly, he gives credit to Bill Clinton for the unfunded mandates law and welfare reform:

Prodded by a Republican Congress and a conservative Supreme Court, Clinton actually presided over the revitalized federalism that Sandel imagined, and even spent time in the White House huddling with Sandel and Putnam. Federalism suited his declared ambition to move beyond the era of ”big government.” In 1995, he signed a law prohibiting the national government from imposing new burdens on the states without first providing funds to cover any costs. The welfare reform package he ushered into law a year later gave states enormous latitude in remaking social policy.

Clinton’s commitment to federalism can be judged by his position on medical marijuana, which was hardly better than the Bush administration’s.

I’d like to think that the Republican assault on federalism would lead to a resurgence of decentralist liberalism. But I expect the Left’s interest in subsidiarity will last as long as its exile from federal power. Federalism, it seems, is the political virtue without a natural constituency. It’s easy to be in the Leave-Us-Alone Coalition. It takes principle to sign up for the Leave-the-Other-Guy-Alone Coalition. And there’s no deep commitment to the principle of federalism in either party.

03/07/2005 | Uncategorized | 3 Comments

Here’s Healy’s great States’ Rights Revisited:

States’ Rights Revisited

By Gene Healy • December 1999 • Volume: 49 • Issue: 12
Lamenting the Supreme Court’s recent batch of pro-federalism decisions, the New York Times termed the Court’s newfound affinity for states’ rights “Supreme mischief,” “deeply disturbing” to right-thinkers everywhere. One expects such talk from dedicated cheerleaders for centralized power. What’s more disturbing, however, is the extent to which the Times’s perspective has gained credence among advocates of limited government. Modern libertarians, rightly concerned with what the Institute for Justice’s Clint Bolick has termed “grassroots tyranny,” ridicule and disparage the time-honored doctrine of states’ rights.

It’s understandable that the under-informed general public associates states’ rights with slavery, Jim Crow, Bull Connor’s police dogs, and “segregation forever.” But classical liberals ought to take a longer view. “States’ rights” merely stands for the propositions that (1) the Constitution should be interpreted strictly with regard to the narrow set of enumerated powers granted the federal government; and (2) that the states can nullify or obstruct federal actions that violate the Constitution. As such, the doctrine has a long and honorable pedigree among advocates of limited government. States’ rights, in the view of classical liberals like Lord Acton, was no mere excuse for states to violate the rights of their citizens. Rather, the independence of the states in the period before the Civil War served as an effective check on federal aggrandizement. As Acton put it, “Centralization finds a natural barrier in the several State governments.”

Modern libertarians tend to have a different perspective, believing that strong federal oversight is indispensable to securing liberty. For example, John McLaughry, head of the libertarian Ethan Allen Institute, says the doctrine of states’ rights is little more than “a hoary legacy from the days of human slavery.” This view rests on a tendentious version of history, one quite at odds with Lord Acton’s, to the effect that in the nineteenth century, state governments were a more serious danger to individual freedom than the federal government. (That perspective is perhaps best encapsulated in Bolick’s Grassroots Tyranny [1993]. See also the Civil War history offered in “Reviving the Privileges or Immunities Clause” by Kimberly C. Shankman and Roger Pilon; Cato Policy Analysis No. 326, at http://www.cato.org.)

The true story is more complicated, and, from a libertarian perspective, far more favorable to the states than the federal government. During the nineteenth century, the people, through the agency of their respective states, repeatedly and effectively resisted federal tyranny. A brief historical survey will make that clear. It will also, I hope, suggest some reasons why modern libertarians should rethink their hostility to states’ rights.

The “Reign of Witches” and the Kentucky and Virginia Resolutions

The nation was still in its infancy, and the Bill of Rights not a decade old, when the Federalist party flagrantly violated the First Amendment with the Sedition Act. The Act criminalized uttering or publishing anything of a “false, scandalous, and malicious nature” with the intent to bring the government or its officers “into contempt and disrepute.” Anyone found guilty could be fined up to $2,000 and imprisoned for two years. The Federalists promptly put it to use in a crackdown aimed at their political enemies.

One Luther Baldwin was convicted of violating the act for little more than the rough expression of admirable libertarian sentiment. Stumbling into a Newark, New Jersey, saloon, during a parade for President John Adams, Baldwin asked what all the ruckus was. A cannon salute for President Adams, he was told. Baldwin exclaimed that it was all the same to him if the cannon was shot up Adams’s rear end. Other convictions were less amusing. David Brown of Dedham, Massachusetts, was sent to jail for 18 months for refusing Supreme Court Justice Samuel Chase’s order to name associates who shared Brown’s Jeffersonian views. Congressman Matthew Lyon of Vermont, an Irish-born republican radical, was imprisoned for criticizing President Adams’s alleged “continual grasp for power.” While in jail, Lyons was overwhelmingly re-elected to his seat.

Vice President Thomas Jefferson saw the Federalists’ tyrannical rule as a “reign of witches.” He and James Madison determined to oppose the Alien and Sedition Acts through the agency of the state governments of Virginia and Kentucky. As historians Stanley Elkins and Eric McKitrick put it in their book The Age of Federalism, “the protest was taken up in a formal way by no less a power than the constituted legislatures of two states against an act of the national government.” Acting in secret, Jefferson drafted the Kentucky Resolutions, Madison, the Virginia ones. Each articulated the “compact” theory of the Union: that the states are equal partners in the federal union, each with the power to interpret the Constitution and thwart federal abuses thereof.

The Virginia Resolutions warned that “a spirit has in sundry instances, been manifested by the Federal Government… to consolidate the States by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.” The states, declared the Resolutions, “have the right and are in duty bound to interpose for arresting the progress of the evil.” Jefferson’s Kentucky Resolutions urged the other states to join Kentucky “in declaring [the Alien and Sedition] acts void and of no force.”

With Jefferson’s accession to the presidency, the “reign of witches” passed, as Jefferson ended prosecutions under the Acts. But the compact theory of the Union lived on, to be invoked again in the service of individual rights.

Nullifying the Tariff of Abominations

During the nullification “crisis” of 1828-33, the power of the states was again employed to counter federal abuses. In For Good and Evil.’ The Impact of Taxes on the Course of History, Charles Adams describes the disproportionate burden that the federal tariff imposed on the Southern states: “The South exported about three quarters of its goods and in turn used the money to buy European goods, which carried the high import tax.” Most of the revenue was spent on internal improvements and other federal projects in the North.

Understandably, the South chafed at the burdens imposed by the tax system. Some of her most prominent political leaders argued that the Constitution granted no power to tax for the purpose of protecting industry, as opposed to raising revenue. With the tariff of 1828, the “Tariff of Abominations,” the battle was joined. The South Carolina legislature denounced the tariff, which brought duties to their highest pre-Civil War level, as “unconstitutional, oppressive, and unjust.”

Playing Jefferson’s role of 30 years before, Vice President John C. Calhoun secretly wrote South Carolina’s Exposition and Protest, in which he outlined the doctrine of nullification. According to Calhoun, state conventions, the same bodies that had ratified the Constitution, could nullify federal legislation that they considered to be in violation of that document. The federal government thereupon could only enforce the law if it secured a new constitutional amendment through the approval of three-fourths of the states.

Calhoun intended the doctrine as a moderate middle position short of the extreme remedy of secession. But soon, a military clash seemed imminent, as President Andrew Jackson denounced nullification and privately swore to hang Calhoun. In the end, though, South Carolina’s defiance forced a partial climb-down by the feds. Senator Henry Clay of Kentucky helped usher through a bill securing a 20 percent reduction in the tariff.

Disputes over the unjust federal revenue system would play a central role in bringing about the Civil War (contrary to most contemporary accounts, which emphasize slavery to the exclusion of almost everything else). The centrality of the tariff issue is revealed in Lincoln’s First Inaugural, in which he disclaimed any intention to interfere with slavery, but was adamant about collecting federal revenue via the tariff. Republican corporate statism and Northern manufacturing depend ed on the Union and a high tariff. As a troubled editorialist in the March 18, 1861, Boston Transcript put it: “The difference is so great between the tariff of the Union and that of the Confederated States, that the entire Northwest must find it to their advantage to purchase their imported goods at New Orleans rather than at New York …. [The government] would be false to all its obligations, if this state of things were not provided against.”

Personal Liberty Laws

Ironically, the controversy over fugitive slaves would find Southerners clamoring for a strong federal role and cursing the doctrine of nullification. In his Battle Cry of Freedom: The Civil War Era, historian James M. McPherson notes a tension in Southern appeals to states’ rights before 1860: “On all issues but one, antebellum southerners stood for state’s rights and a weak federal government. The exception was the fugitive slave law of 1850, which gave the national government more power than any other law yet passed by Congress.” The South’s deviation from principle on this point stemmed in part from economic motives: the federal government’s assistance in recovering escaped slaves made the peculiar institution more secure. But those Northerners who opposed slavery fought back with a states’-rights-based resistance to the tyrannical and unjust fugitive slave laws.

The federal Fugitive Slave Law of 1793 authorized slave owners and their agents to cross state lines and recapture fugitive slaves by force, bringing them before local magistrates to prove ownership. Under the law, the deck was stacked against the purported fugitive, who lacked the protection of habeas corpus and jury trial, and had no right to testify in his own behalf. Small wonder, then, that Southern bounty hunters were less than meticulous in ensuring they’d captured the right person.

Most of the Northern states responded with “personal liberty laws,” providing the fugitive with the procedural protections denied him by the federal statute, and in several cases subjecting slave hunters to kidnapping charges. In Vermont, for example, all fugitives were declared free, and anyone who attempted to capture one could be subject to 20 years imprisonment or a fine of $10,000.

Not even the Supreme Court could deter the North from the path of resistance. When the Court overturned a kidnapping conviction under Pennsylvania’s personal liberty statute, and voided the statute itself, Pennsylvania merely enacted another. Massachusetts was equally open in its defiance of federal authority. Its legislature passed a law providing-that: “No judge of any court of record in this Commonwealth.., shall take cognizance or grant a certificate in cases that may arise under the third section” of the Fugitive Slave Law of 1793. (Northern defiance of Supreme Court decisions on the slave issue would continue when the Court issued its infamous 1857 opinion in Dred Scott. The Maine legislature, for example, was one of several Northern states to declare that Dred Scott was “not binding, in law or in conscience, upon the government or citizens of the United States.” (Shades of George Wallace!)

To appease an increasingly indignant South, Congress in 1850 passed an even harsher fugitive slave statute. Under that law, proceedings were to be held before (newly created) federal “commissioners,” who would only receive half as much for setting the captive free as they would for ruling in favor of his purported owner. All expenses associated with seizing and transporting the captive would be paid by the federal government.

Northern states found the fugitive slave law of 1850 harder to nullify, since it cut state courts out of the process. Still, abolitionists and their “vigilance committees” mounted vigorous resistance to the bounty hunters by force of arms. In 1851, the federal government felt it necessary to make a show of force in response to that resistance. To assist in the recapture of Thomas Sims, a 17-year-old escaped slave working in Boston as a waiter, the reds provided sufficient firepower to ensure that no band of abolitionist vigilantes could free him. When the federal commissioner ruled for Sims’s owner, 300 armed federal deputies and soldiers led Sims and his captor from the courthouse to the navy yard, where 250 more federal troops waited to put them on a ship heading South.

Every year, in high school history classes throughout the country, Americans learn a story intended to illustrate the beneficence of the federal government: in 1957, Arkansas governor Orval Faubus vowed to prevent the integration of Little Rock’s Central High School; President Eisenhower sent in federal troops to protect black schoolchildren from white Southern mobs. Students might get a more balanced picture of the federal role in race relations if teachers juxtaposed the story of Little Rock’s Central High with the story of Thomas Sims.

Libertarian Centralism

The above examples should not be taken to indicate that the states are natural defenders of liberty, organic extensions of the “People” that can be trusted to protect individual rights. Anyone familiar with zoning laws should know better than to embrace such a romantic notion. Instead, this historical survey suggests that the feds are unlikely to be better guardians of individual liberty than the states, and that divided sovereignty can serve as a check against federal oppression.

These examples also undermine the standard account of antebellum federalism, which amounts to public-school history: statist parables designed to make us feel grateful for the presence of our Federal Protector. If the issue were merely historical accuracy, there would be little reason to quibble. But this history is invoked, even by prominent libertarian legal analysts, to justify a particular political program. These scholars, who might be called “libertarian centralists,” view the federal government as an indispensable partner in the struggle to protect individual rights. To that end, the libertarian centralists have advanced a number of policy proposals that should give classical liberals pause—among them: Congress should be free to comprehensively redesign state and municipal codes using the enforcement powers of the Fourteenth Amendment; using the same powers, Congress can legislate directly on matters affecting liberty, with statutes such as the Church Arson Protection Act; and the Supreme Court should depart from constitutional text and engage in moral theorizing when exercising the power of judicial review. Each of these proposals represents a rather dramatic increase in federal authority over the states. The idea that such increased authority will be used to protect liberty rather than to abuse it, represents, like a second marriage, the triumph of hope over experience.

For example, Bolick, in June 7, 1995, testimony before the House Small Business Committee’s subcommittee on regulation and paperwork, said that “Congress has the power to enforce the 14th Amendment through appropriate legislation. It should use this power to enact an Economic Liberty Act. The provisions are simple: any federal or state law that restrains entry into a business or occupation must be narrowly tailored to a legitimate public health, safety, or public welfare objective.’‘ This appears unobjectionable until one contemplates what that plenary power would mean in the hands of welfare statists.

Another example comes from Roger Pilon, director of the Cato Institute’s Center for Constitutional Studies. In a June 18, 1996, Washington Post op-ed, Pilon wrote, regarding the federal Church Arson Prevention Act, “There is, however, a proper basis for Congress to act in the case at hand. It is the 14th Amendment… [I]f state measures prove inadequate and there is evidence available to Congress that federal intervention is necessary, there is ample authority under the 14th Amendment for Congress to act.”

And in a 1988 Cornell Law Review article titled “Reconceiving the Ninth Amendment,” Boston University law professor Randy Barnett wrote that “Given that the Fourteenth Amendment extends the protection of constitutional rights to acts of state governments, the Ninth Amendment stands ready to respond to a crabbed construction that limits the scope of this protection to the enumerated rights.” Again, although it sounds benign, this view is unjustifiably confident that the federal government won’t use the power to enforce unenumerated “positive welfare rights” on the states.

Patrick Henry, arguing against ratification of the Constitution, admonished Virginians to “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it, but downright force: Whenever you give up that force, you are inevitably ruined.” The states did not voluntarily “give up” that force in 1861-65; it was wrested from them by federal aggression. Before the Civil War, individuals were protected from centralized coercion by multiple, divided sovereignties, competing in their interpretations of the national charter, and backing their respective interpretations with force. After that war, individuals were confronted with a powerful unitary state, one that justified its aggression—domestic and foreign with appeals to “liberty.”

Libertarian centralists assure us that we can restore true liberty by gaining influence over that state and making its institutions work for us. The history of American federalism suggests a different solution. If there is a libertarian future, it lies in dividing sovereignty in nullification and secession: opposing Power with Liberty at every turn; hammering every fault line in an attempt to crack the edifice; dividing and diminishing Power, in the hope that individuals will be better able to overcome it or, failing that, escape it. Any other route is a diversion, and a potentially dangerous one at that.

***

From: Healy versus Bolick and the Institute for Justice, LRC Blog, 2005:

Re Healy on States’ Rights and Libertarian Centralists: Yet another blast from the past. In the December 1999 issue of The Freeman, Gene Healy published States’ Rights Revisited (other Healy articles on related topics). The February 2000 issue contained an interesting exchange between Clint Bolick of the Institute for Justice, and others like Roger Pilon, and Gene Healy’s fantastic response to them (pasted below). (Other material on “libertarian centralists”.)

***

States’ Rights and Freedom

By agardner • Posted February 01, 2000

To the Editor:

Gene Healy represents a disturbing trend among some libertarians to nostalgically recall the good old days when states were bastions of freedom. Those days never existed; and as James Madison depicts them in Federalist No. 10, even at the founding they were such bastions of tyranny that a stronger national government was called upon to restrain them.

The concept of states’ rights libertarianism is oxymoronic. All libertarians know that states do not have rights. States have powers. The purpose of our federal system is to restrict the powers of both national and state governments.

The Fourteenth Amendment was the product of the most libertarian Congress in history. Properly construed, the amendment’s scope is purely negative in the sense of restraining state and local violations of civil rights.

Let’s see . . . John Calhoun versus Roger Pilon and Randy Barnett? Not exactly a tough choice for libertarians.

—Clint Bolick
Litigation Director
Institute for Justice
Washington, D.C.

To the Editor:

The complete version of the quotation fragment attributed to me by Gene Healy (from my favorable review of Clint Bolick’s Grassroots Tyranny in Reason, October 1993) is this: “Most of those who pass for ‘conservatives’ are proponents of ‘states’ rights federalism,’ a hoary legacy of the days of human slavery.”

There I joined Bolick in criticizing “conservatives” who view the states as a bulwark against federal power, but who have no concern about what the states themselves do to diminish the freedom of their citizens. Examples given are Robert Bork and Edwin Meese III, who champion the Tenth Amendment and dismiss the Ninth.

For libertarians, of which I am generally one, the important goal is not to preserve inviolate some magical balance of countervailing governmental powers, but to protect and enlarge liberty. “States’ rights” in our time has meant unpunished lynchings, Jim Crow laws, denial of the right to vote, exclusion from occupations, and countless burdens and humiliations inflicted on black Americans by racist state governments. When libertarians invoke a higher (federal) power to protect liberty against slavery and its lingering incidents, I think they have a strong case. The principle of “states’ rights” cuts both ways, as Healy shows. The principle of liberty works only to advance liberty.

Incidentally, states have no rights. States have powers. Only individuals have rights.

—John McClaughry
Ethan Allen Institute
Concord, Vermont

To the Editor:

There he goes again. Last August, in a long article in the pages of Liberty, Gene Healy went after my views on the Fourteenth Amendment. My detailed, 7,000-word response appears in the February 2000 issue. Then in the December 1999 issue of The Freeman: Ideas on Liberty, Healy took on Clint Bolick, John McClaughry, Randy Barnett, and me—on the same subject, but with more attention to history than to theory. My response here will be brief.

Healy wants to resurrect “states’ rights” as a brake on federal power. Properly understood, so do I. But in arguing against federal tyranny, he all but ignores state and local tyranny, which the Fourteenth Amendment, his principal target, was designed to address. Thus, he says that “libertarian centralists view the federal government as an indispensable partner in the struggle to protect individual rights.” Yes, we do, but that doesn’t make us “centralists” in any serious sense of that word—because the Fourteenth Amendment, properly understood, affords only limited power.

To be sure, the amendment enhanced federal power by providing federal remedies for state violations of individual rights, which the original design had failed to provide. Most such remedies were meant to be secured through litigation in the courts. Contrary to Healy’s contention, however, that does not authorize judges to engage in “moral theorizing,” although it does require them to invoke the classic common law—as implied by the amendment. And section 5 of the amendment gives Congress, when necessary, the power “to enforce” those provisions. Here again, however, that is not a power “to comprehensively redesign state and municipal codes,” as Healy claims. Rather, it is a power simply to address state violations of rights through “appropriate legislation.”

Have both courts and Congress exercised their powers under the amendment faithfully? Of course not. Whether by design or by misunderstanding, they have often abused their powers. But that is a separate issue, to be addressed on its own terms. Our liberties will be better secured not by abandoning our system of dual sovereignty but by getting it right. That, precisely, is what modern libertarian legal theorists are trying to do.

—Roger Pilon
Vice President, Legal Affairs
Cato Institute
Washington, D.C.

Gene Healy responds:

Clint Bolick begins by trotting out the states-don’t-have-rights-states-have-powers straw man from his 1993 book Grassroots Tyranny. (John McClaughry apparently also found the phrase irresistible and irrefutable.) But here Bolick confuses natural rights and legal rights. No one—no libertarian, at least—who speaks of a violation of “states’ rights” thereby seeks to ascribe natural rights to an artificial, noncognizant entity like a state.

When a libertarian decentralist calls a federal action a violation of “states’ rights,” he means that the federal government has transgressed its enumerated powers and is claiming jurisdiction over an area that the Constitution reserves to the states. In a similar fashion, we can speak of NATO’s lawless assertion of jurisdiction over a civil war in Yugoslavia as a violation of Yugoslav “sovereignty,” without thereby conceding to Slobodan Milosevic’s government a god-given natural right to kill Kosovar Albanians. I’m curious, would Bolick and McClaughry respond to critics of NATO’s cluster-bomb humanitarianism with “states aren’t sovereign, only individuals are sovereign”?

Bolick suggests that the idea of states’ rights has always been anathema to libertarians. Not so. Libertarian decentralists can draw on a host of classical-liberal thinkers who embraced divided sovereignty and viewed centralization in the name of liberty with intense skepticism. Among them: Thomas Jefferson, Lord Acton, Albert Jay Nock, and Felix Morley. In fact, Bolick must know that “states’ rights libertarianism” is not oxymoronic, because he is familiar with Felix Morley’s work. In Grassroots Tyranny, Bolick repeatedly cites Morley’s classic Freedom and Federalism despite Morley’s embrace of states’ rights and wholesale rejection of Fourteenth Amendment activism. (Morley, who viewed Thad Stevens as an American Robespierre, would also have taken issue with Bolick’s belief that the pro-tax, high-tariff, corporate statists in the Radical Republican junta constituted the “most libertarian Congress in history.”)

As for John Calhoun, Murray Rothbard—who after all knew a thing or two about libertarianism—would have been bemused by Bolick’s notion that Calhoun was far too politically incorrect to be of service to libertarians. Rothbard called Calhoun “one of America’s most brilliant political theorists,” and quoted him at length in For a New Liberty.

If Bolick wants his position on libertarianism and federalism to remain the party line, then when that position is challenged he ought to respond with something more than a few sound bites and a dismissive tone. He ought to make an argument or two.

To his credit, Roger Pilon has made an extended argument on behalf of a strong Fourteenth Amendment, in which he grapples with some of the tough issues that position presents. Pilon’s argument, and my response thereto, will appear in a forthcoming issue of Liberty magazine.

In his letter to Ideas on Liberty, Pilon objects to my use of the term “libertarian centralism.” I remain comfortable with characterizing Pilon’s position in that fashion. The interpretation that Pilon gives to the Fourteenth and Ninth Amendments confers federal jurisdiction over each and every rights violation committed at any level of government, whether it be a municipal recycling program or a local zoning ordinance. If this isn’t centralism, the word has no meaning.

Political power being what it is, centralism in the name of liberty is quite unlikely to lead to liberty. Far too much of Roger Pilon’s argument for a strong Fourteenth Amendment rests on the words “properly understood.” But properly understood, the Commerce Clause, to take one example, merely eliminates interstate trade barriers—it provides no justification for the mammoth administrative state erected in its name. Nonetheless, any anti-federalist transported to late-twentieth century America would consider himself vindicated on seeing what centralism in the name of liberty has wrought.

Murray Rothbard well understood the fragility of parchment barriers to state power. In For a New Liberty he wrote of “the inherent tendency of a State to break through the limits of its written Constitution.” Rothbard quoted none other than John Calhoun to make the point: “it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government . . . will be sufficient to prevent the major and dominant party from abusing its powers.”

Pilon sees in the Fourteenth Amendment an effective check on such abuses. I see it as a source of further abuses. Collectivists in Congress and on the federal bench will seize on the expansive construction of the amendment Pilon urges to subvert the very liberties he seeks to secure. In so doing, they are unlikely to be restrained by what Pilon views as the proper understanding of the amendment.

Fragmentation of political power, even—perhaps especially—when such power is invoked in the service of our natural rights, is a surer guarantor of liberty than the goodwill of federal legislators and judges. I’d have thought that this was a respectable position for a libertarian to take. But if, as Bolick and McClaughry suggest, this be heresy—then make the most of it.

Missouri GOP Calls for Revolution notes that “Missouri’s Lafayette County Republican Central Committee has put up a billboard proudly advising citizens to prepare for the violent overthrow of the US government.” The billboard (see right) reads:

A citizens guide to REVOLUTION of a corrupt government.
1. Starve the Beast, keep your money.
2. Vote out incumbents.
3. If steps 1 & 2 fail?
PREPARE FOR WAR – LIVE FREE OR DIE

Now, I’m not an admirer of electoral politics, political parties, or Republicans, but this ain’t bad. But of course, this doesn’t sit well with some regime libertarians–or should I say, regime “libertarians.” In response to the billboard, one of them made his disapproval clear, in one of most disgusting “libertarian” posts I’ve ever read. Excerpts below, with some bolding added:

The embarrassing opposition to Obama

As someone strongly opposed to the Obama Administration’s policies, I am finding myself embarrassed time and time again by its opponents–Republicans, libertarians, and other. There are some very good and on-target spokesmen for principles of limited government and individual freedom, but they seem to get little attention; instead we seem to be deluged with superficial, ignorant spokesmen who don’t even mouth clever soundbites, or hysterical loonies weeping and drawing absurd conspiracy theories on blackboards. All of that is sad enough, and then we get this. This not so subtle piece of work is brought to us by a county Republican party. Not an isolated bunch of kooks, but a bunch of kooks with the official Republican Party name, suggesting violent overthrow of the duly constituted, democratically elected, government of the United States.

This will not do. I believe strongly in the right of revolution and I believe strongly that much of what the federal government does today is unconstitutional and immoral. But Barack Obama is my president, and this government is my government, whatever its very serious flaws. This remains a great, free, strong nation that can, as she has in the past, restore herself to her principles by free democratic and constitutional action. She is a free and great and noble country [note the equation of country and government here -- SK] and my loyalty to her Constitution does not rise and fall based simply on who wins elections. …

There are all sorts of reasons to criticize Obama. But the opposition must be based on serious ideas, responsibly advanced–not this demagoguery and childishness.

As my friend Rob Wicks said, “I wonder if he thinks that black South Carolinians in 1840 should have said, ‘John C. Calhoun is my senator.’” It is not “my” or “his” government. It is a criminal organization. When will statist-libertarians get it? Do they have to believe everything they learned from Saturday Morning public service commercials?

Update: A selection of comments sent in to me:

I agree, irredeemably awful.

Anyway, doesn’t he like the American Revolution? Why was it okay for them to fight a war over far less? Because “the Union” is sacred, I guess.

***

This is bad. And what principles is he talking about returning to, anyway? I get sick of this bullsh*t American mythologizing about returning to anything. No, at best, he may be talking about living up to the rhetoric more fully. But as far as I am concerned, American domestic freedom probably peaked in the late 1960s and early 1970s.

Look at even the 50 states. This is a domestic empire. Almost all of it is conquered land, be it from Native Americans, Hawaiians, or Southerners. All this bleating about the empire being at odds with American tradition is mythological bullsh*t. The difference now is that the government no longer looks to exterminate or subjugate the natives and put Americans in charge of the local governments. They’d rather have proxies. I fail to see why empire by proxy represents some fundamental shift from the old fashioned kind

Why is this libertarian? with or without scare quotes. “Barack Obama is my president, and this government is my government, whatever its very serious flaws… restore herself to her principles by free democratic and constitutional action. She is a free and great and noble country and my loyalty to her Constitution…” LOL! How can you stand to read this stuff? I’m not kidding around. This is bad for your mind, man.

***

MY PRESIDENT?!?!?!? so he loves democracy, accepts the social contract and acquiesces in it all.

***

The only authority we are allowed to question is that of the past, and especially those who were on the losing side of struggles for freedom. Therefore, the American Revolution was good, but the Southern Secession bad, Vietnam war protesters are good, but the WWII objectors were bad, Martin Luther King, Jr. and Rosa Parks were good, but modern day civil disobediencers and tax evaders are bad, etc.

***

I’ll take King George over Obama any day. Does this clown really think people were less free in 1776?

***

What’s odd is that he takes particular offense at the fact that this message came from a county GOP. That would be like saying, “Not only does this piece of literature attack government spending — it’s coming from the Nazi party of all places, and they should be held to a higher standard.”

***

How about Hitler as “My chancellor?” His appointment was all legal, as far as I know. (Godwin’s law strikes again!)

***

Wow… let’s forget for a moment that “limited government” is impossible. For this idiot to say “I believe strongly in the right of Revolution…..”, and then write this drivel, calling himself a Libertarian…..is the epitome of ignorance.

Good job. We need to expose more of these morons for what they are: shills for the regime.

***

I damn near puked when I read that cr*p about Obama being “my President” and our government “flawed though it may be” is “my government”. Second, I was really baffled to learn that the sign came from state Republicans. What is going on??? GOP sounding like libertarians and libertarians sounding like GOP??? I would like to think the sign represents some deep, principled devotion to personal liberty by this particular faction of the GOP and not simply an opportunistic play for the minds of genuine libertarian thinking types now that there is so much dissatisfaction with the current administration. The sign would be just as apropos with respect to the last administration and for many of those before even that. Somehow, I find it hard to believe the state GOP would have erected such a sign were Dubya still in office. I would like to think so, but I doubt it.

***

“But Barack Obama is my president,…”

Actually he isn’t; he’s the president of the states, that’s why there is no requirement that he be popularly elected. John C. Calhoun was the representative of South Carolina, not the people of SC since the state legislature elected senators before the system was wrecked. Blind loyalty to an office is foolishness in any event.

Update 2: Our regime “libertarian” pens a risible retort to this post:

Stephan Kinsella adds a new one to the Lew Rockwell Vituperation Watch! Evidently, condemning fanatics who irresponsibly encourage violence and civil war and throw around ridiculous charges of fascism and whatnot qualifies as “one of most disgusting ‘libertarian’ things I’ve ever read.”

It wasn’t the condemning of “fanatics,” it was the fawning, brainwashed Schoolhouse Rock adulation of the State. And if it’s “irresponsible” to encourage violent defense of one’s life (and not civil war, by the way, but REVOLUTION–those who hate the state’s oppression of liberty just want to be free), then I suppose our centralist Lincoln idolator would have to condemn the American Revolution. How irresponsible they were!

You can always count on Kinsella (who has never in his life done a single thing to make a single person freer) for thoughtfulness.

I think in this post our RL is referring to the fact that he helps defend individuals from the state’s victimization as an activist attorney. I of course admire and respect such activism, even if it can tempt the advocates into believing the pro-state, centralist norms they have to accept in order to make arguments to the state’s “judges.” In fact in a recent brief, he along with others advocates an extreme centralist interpretation of the Constitution that would give even more power and jurisdiction to the criminal gang known as the federal judiciary, to dominate the states, further eroding one of the few somewhat meaningful limits on central, federal power–federalism. (Criticism of libertarian centralism may be found in Rand, Objectivism, and One-World Government, Libertarian Centralists, and other posts.) I think our RL is trying to snipe at me for not being a lawyer who works for IJ or something. What is the relevance of this silly charge? To activists, there is no value to libertarian theory. Who did Murray Rothbard ever help to make any given person free? What a loser he was!

I saw this sign by the 610 loop in Houston today, and snapped this picture with my iPhone. The sign displays an ominous looking Texas state agent, and the words read:

THE EYES OF TEXAS ARE UPON YOU: Cellular Phone Users: please call 911 to report criminal activities or emergencies.

You know, like if mommy and daddy don’t recycle or pay their taxes.

[LRC cross-post]

In response to recent comments by Emily Bazelon on the Slate Political Gabfest, I posted the following on their facebook page:

Two bones to pick with Emily. First, she is infuriated with Palin for not giving credit to feminism, even though she “gained” from victories of feminism. I am no Palin fan, and as a libertarian am not completely opposed to the feminist agenda. But criticisms like these seem incredibly unfair to me. They seek to muzzle people by virtue of their gender or race. It’s okay for a white man to oppose affirmative action but not Clarence Thomas since he “benefited” from it; a man can criticize feminism … but not a woman? People have a perfect right to hold whatever views they want, regardless of their gender or race etc.; they can even disagree with a policy that has affected (even benefited) them. (I oppose patent law even though I’ve made money off of it; a tax lawyer can oppose the income tax; a cancer doctor can oppose cancer, etc.)

Second bone: Emily accuses Palin of lying because of the Death Panels remark. The other lies or errors that I’ve heard of seem trivial, and this one does not seem like a lie. See Lew Rockwell here:

On Morning Joe today, all the Republicans employed by the Obama …regime via MSNBC were united with the Dems in chastizing Sarah Palin for her comment that Obamacare would lead to death panels promoting euthanasia and infanticide of the “unfit.” How could the mobs possibly think this? After all, Obama supports federal funding for killing the unborn, and his plan will massively expand this program. He sends his predator drones to kill those unfit for life, according to his calculus, in Afghanistan. He supports a war in Iraq that has taken a million lives. He has ethnically cleansed millions in Pakistan. He is the product of an ideological movement that is pro-euthanasia. Of course, Obamacare will eventuate in killing people.

We libertarians recognize the state is nothing but a killing machine, an agent of destruction and death. You liberals are very inconsistent about this. As the great Ludwig von Mises said, “No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.”

[LRC cross-post]

Physicist Howard Hayden, a staunch advocate of sound energy policy, sent me a copy of his letter to the EPA about global warming. The text is also appended below, with permission.

As noted in my post Access to Energy, Hayden helped the late, great Petr Beckmann found the dissident physics journal Galilean Electrodynamics (brochures and further Beckmann info here; further dissident physics links). Hayden later began to publish his own pro-energy newsletter, The Energy Advocate, following in the footsteps of Beckmann’s own journal Access to Energy.

I love Hayden’s email sign-off, “People will do anything to save the world … except take a course in science.” Here’s the letter:

***

Howard C. Hayden
785 S. McCoy Drive
Pueblo West, CO 81007

October 27, 2009

The Honorable Lisa P. Jackson, Administrator
Environmental Protection Agency
1200 Pennsylvania Ave., NW Washington, DC 20460

Dear Administrator Jackson:

I write in regard to the Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Proposed Rule, 74 Fed. Reg. 18,886 (Apr. 24, 2009), the so-called “Endangerment Finding.”

It has been often said that the “science is settled” on the issue of CO2 and climate.  Let me put this claim to rest with a simple one-letter proof that it is false.

The letter is s, the one that changes model into models. If the science were settled, there would be precisely one model, and it would be in agreement with measurements.

Alternatively, one may ask which one of the twenty-some models settled the science so that all the rest could be discarded along with the research funds that have kept those models alive.

We can take this further.  Not a single climate model predicted the current cooling phase.  If the science were settled, the model (singular) would have predicted it.

Let me next address the horror story that we are approaching (or have passed) a “tipping point.” Anybody who has worked with amplifiers knows about tipping points.  The output “goes to the rail.” Not only that, but it stays there. That’s the official worry coming from the likes of James Hansen (of NASA­GISS) and Al Gore.

But therein lies the proof that we are nowhere near a tipping point.  The earth, it seems, has seen times when the CO2 concentration was up to 8,000 ppm, and that did not lead to a tipping point.  If it did, we would not be here talking about it. In fact, seen on the long scale, the CO2 concentration in the present cycle of glacials (ca. 200 ppm) and interglacials (ca. 300-400 ppm) is lower than it has been for the last 300 million years.

Global-warming alarmists tell us that the rising CO2 concentration is (A) anthropogenic and (B) leading to global warming.

(A) CO2 concentration has risen and fallen in the past with no help from mankind.  The present rise began in the 1700s, long before humans could have made a meaningful contribution. Alarmists have failed to ask, let alone answer, what the CO2 level would be today if we had never burned any fuels.  They simply assume that it would be the “pre-industrial” value.

• The solubility of CO2 in water decreases as water warms, and increases as water cools. The warming of the earth since the Little Ice Age has thus caused the oceans to emit CO2 into the atmosphere.

(B) The first principle of causality is that the cause has to come before the effect.  The historical record shows that climate changes precede CO2 changes. How, then, can one conclude that CO2 is responsible for the current warming?

Nobody doubts that CO2 has some greenhouse effect, and nobody doubts that CO2 concentration is increasing. But what would we have to fear if CO2 and temperature actually increased?

• A warmer world is a better world.  Look at weather-related death rates in winter and in summer, and the case is overwhelming that warmer is better.
• The higher the CO2 levels, the more vibrant is the biosphere, as numerous experiments in greenhouses have shown. But a quick trip to the museum can make that case in spades.  Those huge dinosaurs could not exist anywhere on the earth today because the land is not productive enough.  CO2 is plant food, pure and simple.
• CO2 is not pollution by any reasonable definition.
• A warmer world begets more precipitation.
• All computer models predict a smaller temperature gradient between the poles and the equator.  Necessarily, this would mean fewer and less violent storms.
• The melting point of ice is 0 ºC in Antarctica, just as it is everywhere else.  The highest recorded temperature at the South Pole is –14 ºC, and the lowest is –117 ºC. How, pray, will a putative few degrees of warming melt all the ice and inundate Florida, as is claimed by the warming alarmists?

Consider the change in vocabulary that has occurred.  The term global warming has given way to the term climate change, because the former is not supported by the data.  The latter term, climate change, admits of all kinds of illogical attributions. If it warms up, that’s climate change.  If it cools down, ditto.  Any change whatsoever can be said by alarmists to be proof of climate change.

In a way, we have been here before.  Lord Kelvin “proved” that the earth could not possibly be as old as the geologists said.  He “proved” it using the conservation of energy.  What he didn’t know was that nuclear energy, not gravitation, provides the internal heat of the sun and the earth.

Similarly, the global-warming alarmists have “proved” that CO2 causes global warming.

Except when it doesn’t.

To put it fairly but bluntly, the global-warming alarmists have relied on a pathetic version of science in which computer models take precedence over data, and numerical averages of computer outputs are believed to be able to predict the future climate.  It would be a travesty if the EPA were to countenance such nonsense.

Best Regards,

Howard C. Hayden
Professor Emeritus of Physics, UConn

[LRC cross-post; Mises blog cross-post]

According to Cato’s Julian Sanchez:

The Patriot Act should not be “repealed,” which I suppose makes it a good thing that nobody is seriously proposing to do so.

Haven’t Ron Paul, Andrew Napolitano, and others “seriously” proposed to do so? I understand Sanchez has written a good deal critical of the Patriot Act’s surveillance powers and in opposition to the growth of the surveillance state, but why it should not be repealed is beyond me.

[LRC cross-post]

Let me highlight a few excerpts from Google digital library plan opposed by Angela Merkel: German chancellor opposes the internet firm’s attempt to put every book ever written online:

German chancellor Angela Merkel yesterday waded into the row over Google’s plans to build a massive digital library.

The move was a remarkable intervention from a leading world politician in a growing dispute about the threat posed by the internet, and Google in particular, to publishing companies, authors and also newspapers.

In her weekly video podcast, before the opening of the Frankfurt Book Fair this week, Merkel appealed for more international co-operation on copyright protection and said her government opposed Google’s drive to create online libraries full of scanned books.

“The German government has a clear position: copyrights have to be protected on the internet,” Merkel said, adding that there were “considerable dangers” for copyright protection online.

Isn’t this astonishing? I thought “the goal” of copyright was to promote the spread and growth of human creativity. Now it appears “the goal” is to protect copyright itself. This reminds of government school advocates who say they “believe in public school”; who oppose any attempt to reform or privatize public school because it might threaten public schooling–when the goal of public schools is supposed to be education. Google’s “plan would make millions of out-of-print books available online and thus would not cannibalise existing sales, as those books were not readily available to buyers. Google argues that it is increasing access to works that would otherwise never see the light of the day.” But the state fears the unregulated behavior of free people. Who knows what people might do with this information? If you let people freely connect and communicate in a digital world, the state’s copyright and other regulations might not even reach them! And we can’t have that!

So these atavistic brutes want to kept information locked up in musty paper because of a fear that some people might learn things without dropping a nickel in the Galambosian box. If they don’t understand it, if they can’t control it–Hulk smash! Doesn’t this recall the heartless zeal of drug warriors who are willing to deny suffering people medical marijuana because the only way to effectively outlaw recreational marijuana use is to allow no exceptions. And we have to prevent recreational marijuana use… don’t we? We have to protect copyright, don’t we? We have to have government education, don’t we? I mean, who can imagine the horrors of a dystopian world where people were free to use marijana; where they had hundreds of millions of books available any time, at their fingertips; where states are not able to brainwash and propagandize students in their little loyalty-factories.

[LRC cross-post; AgainstMonopoly cross-post]

As noted in this alert by the law firm Fulbright & Jaworski, the U.S. Patent and Trademark Office (PTO) has announced that it is rescinding controversial rules promulgated in 2007 that have been ensnarled in litigation since then. The rules sought to limit the number of patent claims per patent application, and the number of continuing applications that could be filed. As I noted in Radical Patent Reform Is Not on the Way, these changes are not radical, as the patent privileges lobby paints them. But the very fact that they were so vociferously opposed by the organized patent bar, such as the AIPLA, indicates that these changes would probably have been in the right direction. Basically, anything the AIPLA is against, the libertarian should be for.

Following the rule that each President is worse than the last and eventually makes you nostalgic for his predecessor, here we have a case where the Obama administration is fighting one of the few halting, tentative efforts of the Bush administration to actually improve matters. As a PTO press release stated, the current PTO Director “has signed a new Final Rule rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property.” As Fulbright’s alert notes, “The exact scope of the PTO’s procedural rulemaking authority, a highly contested issue in this dispute, remains unresolved. The rescission of these rules may prove to be a tactical decision in a quest for greater PTO rulemaking authority. Despite the PTO’s emphasis that these rules were proposed by the previous administration, the current administration, via Secretary of Commerce Gary Locke, is actively lobbying for substantive rulemaking authority at the PTO.”

[LRC post; AM post]

Manuel, Lew, David — Yes, we should not be surprised at this. Hans Hoppe once noted that f you want to win the Nobel peace prize, it helps if you are a mass murderer; if you want to win the economics Nobel prize, it is always of advantage if you have contributed to ruining various countries’ economies or you have written completely irrelevant mathematical treatises that are of no concern to anyone whatsoever (he also notes that the economics prize is donated by the Swedish central bank and the committee members are life-long appointees and except for two years social democrats have run the show so that it is roughly predictable who can possibly win the prize; thus, James Buchanan has advocated a 100% inheritance tax and is hailed as a free marketeer, so he can win; Milton Friedman, a free marketeer who fought for paper money all his life, endorsed the negative income tax (guaranteed income), educational vouchers (like food stamps for education), can of course win. I.e., socialists can win and be presented to the public as free marketeers. See Hoppe’s Mises University 2001 lecture “Mises and the Foundation of Austrian Economics“, at about 1:10:20 to 1:12:. See also Hoppe’s ruminations on the Nobel in economics here.)

I can’t say I relish confronting even more smug, preening Obamaites, though. One solution would be to just award Obama the Nobel prize in economics too–that would help smash the credibility of both prizes.

Update: See Roderick Long’s post from 2003:

A lot of people were outraged when Yasser Arafat won the Nobel Peace Prize in 1994 – a choice which people are still protesting.

I’m no fan of Arafat, but look at the list of folks he shares that dubious honour with. There are certainly some good people on that list (including, I believe, the only libertarian: French economist Frédéric Passy, recipient of the very first prize in 1901, and perhaps the only person ever to accuse Gustave de Molinari of not being sufficiently libertarian!), but it also includes such pestilent warmongers as:

Theodore Roosevelt – 1906
Woodrow Wilson – 1919
Henry Kissinger – 1973
Mikhail Gorbachev – 1990As far as I’m concerned, the Nobel Peace Prize became meaningless as of 1906. Arafat is welcome to it.

[LRC]

I was interviewed recently by Matt Cockerill of Young Americans for Liberty. Our interview covered several topics, such as minarchism vs. anarcho-libertarianism, the non-aggression principle, gay marriage, restitution vs. retribution, intellectual property, and pessimism and activism. Here are the audio file; the Youtube version is below:

[LRC cross-post]

From LRC, 2003:

I recalled recently an utterly fascinating legal squabble I read about when I lived in Philadelphia. This concerns the infamous Holdeen Trusts (link 2), and a series of cases and legal disputes centered around same. An article about it in the Philadelphia Inquirer caught my notice because it concerned the efforts of an eccentric millionaire New York lawyer, Jonathan Holdeen, to set up a series of trusts that would one day totally wipe out taxes, at least in Pennsylvania.

The BBC reports, in Working mothers’ children unfit, a study concluding that “Children whose mothers work are less likely to lead healthy lives than those with ‘stay at home’ mothers. … The Institute of Child Health study of more than 12,500 five-year-olds found those with working mothers less active and more likely to eat unhealthy food.”

As Gil Guillory told me,

This could easily be presented with a positive spin: children of stay-at-home moms benefit from better eating and exercise habits. Instead, insanity reigns:

“Our results do not imply that mothers should not work.
“Rather they highlight the need for policies and programmes to help support parents”

[LRC cross-post]

We non-Pollyana libertarians oppose calls for tax “reform” — as Rockwell writes, “The only tax plan anyone should trust is the most simple possible: the one that proposes to lower existing taxes.” He goes on:

But there is another danger to promoting a VAT or a NST. It might actually convince someone in Washington to give it a try. And instead of replacing the whole tax code, the politicians might try to introduce the new one at the seemingly low rate of 1 percent or 3 percent. If they ever get away with this, look out. It will inch up year by year as the political class discovers yet another way to loot us.

This points to a general danger of the idea of a replacement tax. I hear of these plans all the time. People say, let’s get rid of the tax I don’t like and replace it with one I do not pay. So people will propose getting rid of the capital gains tax and instead increase taxes on inheritance. Or they say, let’s get rid of inheritance taxes and put a higher tax on Americans working abroad. You can think of many of your own variations on this. The danger here is not in advocating the repeal of one tax. That is something we should all favor. The danger comes from advocating a new tax to take its place. If you know the way politics works, you know that the new tax will be enacted and the old one not repealed.

And here is perfect proof of this: Podesta Says Value-Added Tax ‘More Plausible’ as Deficits Grow. This is of course just yet another tax on top of others. Libertarians: stay strong. Never advocate tax “simplification”. Never advocate “replacing” any tax with another. (No offense, my naive, 23-year old self.)

[LRC cross-post]

This is a great quote. I don’t know if it’s mine, as one commentator implies, but I like it.

Here’s the post of said commentator, “Stephen”:

We’ve had quite a few threads lately that call Natural Rights into question. I stumbled onto this brilliant critique of this skeptical position by Stephan N. Kinsella, which I had read before and forgotten about.

Kinsella:
A third rationalist type of rights argument concerns the very nature of rights themselves and shows how any rights-skeptic contradicts himself whenever he denies that rights exist. It is similar to the estoppel approach outlined above, although the discourse under examination need not involve an aggressor. Instead, this argument focuses on rights-skeptics who deny the existence of rights, rather than on actual criminals who object to being punished in particular instances for a given crime.

If any right at all exists, it is a right of A to have or do X without B‘s preventing it; and, therefore, A can legitimately use force against B to enforce the right. A is concerned with the enforceability of his right to X, and this enforceability is all that A requires in order to be secure in his right to X. For a rights-skeptic meaningfully to challenge A‘s asserted right, the skeptic must challenge the enforceability of the right, instead of merely challenging the existence of the right. Nothing else will do. If the skeptic does not deny that A‘s proposed enforcement of his purported right is legitimate, then the skeptic has not denied A‘s right to X, because what it means to have a right is to be able to legitimately enforce it. If the skeptic maintains, then, that A has no right to X, indeed, no rights at all since there are no rights, the skeptic must also maintain that A‘s enforcement of his purported right to X is not justified.

But the problem faced by the skeptic here is that he assumes that enforcement–i.e., the use of force–requires justification. A, however, cares not that the rights-skeptic merely challenges A‘s use of force against B. The rights-skeptic must do more than express his preference that A not enforce his right against B, for such an expression does not attack the legitimacy of A‘s enforcing his right against B. The only way for the skeptic meaningfully to challenge A‘s enforcement action is to acknowlefge that B may use force to prevent A‘s (illegitimate) enforcement action. And here the rights-skeptic  (perversely) undercuts his own position, because by recognizing the legitimacy of B‘s use of force against A, the rights-skeptic effectively attributes rights to B himself, the right to not have unjustifiable force used against him. In short, for anyone to meaningfully maintain that A has no rights against B on the grounds that no rights exist, he must effectively attribute rights to B so that B may defend himself against A‘s purportedly unwarranted enforcement action.

More common-sensically, this demonstration points out the inconsistency on the part of a rights-skeptic who engages in discourse about the propriety of rights at all. If there are no rights, then there is no such thing as the justifiable or legitimate use of force, but neither is there such a thing as the unjust use of force. But if there is no unjust use of force, what is it, exactly, that a rights-skeptic is concerned about? If individuals delude themselves into thinking that they have natural rights, and, acting on this assumption, go about enforcing these rights as if they are true, the skeptic has no grounds to complain. To the extent the sceptic complains about people enforcing these illusory rights, he begins to attribute rights to those having force used against them. Any rights-skeptic can only shut up, because he contradicts himself the moment he objects to others’ acting as if they have rights.

And in hilarious footnote 14

Indeed, another way to respond to a rights-skeptic would be to shoot him. If there are no rights, as he maintains, then he cannot object to being shot. So, presumably, any rights-skeptic would change his position and admit there were rights (if only so as to be able to object to being shot), or we would soon have no more rights-skeptics left alive to give us rights-advocates any trouble.

The way abortion is portrayed on TV and in movies is annoying. Because Hollywood is dominated by left-liberals, whenever a woman has an unplanned pregnancy, we always see the mom-to-be wonder “what she’s going to do,” making it clear that she has the option to abort. But they don’t say the word abortion, and the woman always exercises her choice to keep the baby. That way, Hollywood gets to help spread the image that “of course” pro-choice is the right position, but the woman makes the “right” choice so as to avoid alienating the pro-life “rubes.”

Well that’s not enough for some of them. The new CBS comedy Accidentally on Purpose is about a late-thirties single woman who gets pregnant after a one-night-stand with a 22 year old slacker, and decides to keep the baby and raise it as a single mother. It’s based on the true story of one Mary Pols, who is upset because the CBS sitcom doesn’t have the pregnant mom consider an abortion. Pols is okay with the decision to keep the baby; that’s what Pols did in real life. But Pols considered an abortion; so she’s upset that the sitcom didn’t at least show the mom wonder–out loud, for the benefit of the rubes in Red states, you see–”Should I have an abortion?” And maybe–in a network sitcom, natch–casually mention that she had had an abortion in her youth. After all, Pols had one–she’s “been down the college-girl abortion route”–what good liberal college girl doesn’t?; its part of the natural learning experience, you see; and Pols even says “it had broken my heart”–but not, she’s careful to note, to avoid the raised eyebrows of anti-choice feminazis, “in a I-shouldn’t-have-done-that way, but” only in a politically correct, acceptable, “I-wish-I-hadn’t-had-to-do-that way.”

The Pols complaint was published on DoubleX, Slate’s spin-off web portal for liberal women. An even more pro-abortion, even anti-choice, piece appeared on the same site, Bonnie Rochman’s I Don’t Support Carolyn Savage Carrying the Wrong Baby to Term. This is about “Carolyn Savage, the Ohio woman who, in the process of undergoing IVF, was mistakenly implanted with another couple’s embryo. She decided to carry the baby to term and just passed the 35-week mark.” Rochman is having none of it. “I’m not lining up behind the well-wishers cheering on” Savage. She wonders “at what point self-interest should trump altruism”. By making it a simple calculus, Rochman seeks to make it clear that the life of the fetus is irrelevant. As one commenter noted,

There are some opinions that make for interesting articles; there are others that you keep to private conversations. This was the later. Publishing this is article is anti-choice, both literally and politically. Literally, Ms. Rochman goes on the record as opposing the choice of women who would make different decisions than she would. What about being pro-choice doesn’t she get? Politically, this only fuels pro-lifers who equate pro-choice with pro-abortion.

It reminds of the sickening pro-abortion comments of some Randians (see Objectivist Hate Fest) who were opposed to women with Down Syndrom fetuses carrying them to term–they believe there is a moral obligation to abort–to “squelch”–an “unhealthy fetus”–and that support of these mothers is the “worship of retardation.” Methinks such bloodcurdling sentiments don’t really help the “pro-choice” cause very much.

[LRC cross-post]

Lew Rockwell noted on his blog recently some tentative steps towards disarmament between the US and Russia; he’s right: blessed are the peacemakers. And at first glance, the recent UN resolution committing all nations to work for a nuclear weapons-free world might give some cause for hope–though the cynic would think that China, Russia, Europe, and America are simply solidifying their nuclear hegemony, while America is starting to build its case for potential future military action against “rogue” nations (note one purpose of the resolution is to reduce the risk of nuclear terrorism”–shades of the buildup to the Iraq war!).

Granted, the UN raises concerns about centralization, one-world government, and socialistic resolutions–but nowadays these concerns are very remote. There is little risk of the Powers giving up their sovereignty to the UN or forming a one-world government under anything but their own aegis; rather, the risk is they will just use the UN for cover to dominate and legitimize attacks on smaller states, as Bush deftly did with Iraq War (who said he’s stupid? he expertly used the international system to get what he wanted). Still, to the extent the UN is less restricted by positive law and legislation, it–in particular its International Court of Justice–is freer to follow traditional concepts of justice in declaring what international law “is”. For this reason, I’ve always had more hope in international law being potentially more libertarian than modern, legislated municipal law. There is no great barrier to considerations of natural law, for example, being drawn on to decide what international law is. That is, despite the (now remote) danger of centralization and one-world government, and despite its being used and manipulated by the Great Powers to dominate other nations, international law is, and should be expected to remain, more libertarian than the laws of individual states.

A case in point is the ICJ’s advisory opinion in 1996 (in response to a request by the UN’s General Assembly) regarding the Legality of the Threat or Use of Nuclear Weapons, which I noted on the LRC blog in 2003 (see also the companion case, Legality of the Use by a State of Nuclear Weapons in Armed Conflicts. See, in particular, the heroic dissenting opinion (PDF) of Judge Weeramantry of Sri Lanka, which was (quoting from the unofficial summary):

based on the proposition that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23(a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

He regretted that the Court had not so held, directly and categorically.

Judge Weeramantry’s Opinion explained that from the time of Henri Dunant, humanitarian law took its origin and inspiration from a realistic perception of the brutalities of war, and the need to restrain them in accordance with the dictates of the conscience of humanity. The brutalities of the nuclear weapon multiplied a thousand-fold all the brutalities of war as known in the pre-nuclear era. It was doubly clear therefore that the principles of humanitarian law governed this situation.

His Opinion examined in some detail the brutalities of nuclear war, showing numerous ways in which the nuclear weapon was unique, even among weapons of mass destruction in injuring human health, damaging the environment, and destroying al1 the values of civilization.

The nuclear weapon caused death and destruction; induced cancers, leukaemia, keloids and related afflictions; caused gastro intestinal, cardiovascular and related afflictions; continued, for decades after its use, to induce the health-related problems mentioned above; damaged the environmental rights of future generations; caused congenital deformities, mental retardation and genetic darnage; carried the potential to cause a nuclear winter; contaminated and destroyed the food chain; imperilled the eco-system; produced lethal levels of heat and blast; produced radiation and radioactive fall-out; produced a disruptive electromagnetic pulse; produced social
disintegration; irnperilled al1 civilization; threatened human survival; wreaked cultural devastation; spanned a time range of thousands of years; threatened all life on the planet; irreversibly damaged the rights of future generations; exterminated civilian populations; damaged neighbouring States; produced psychological stress and fear syndromes–as no other weapons do.

While it was true that there was no treaty or rule of law which expressly outlawed nuclear weapons by name, there was an abundance of principles of international law, and particularly international humanitarian law, which left no doubt regarding the illegality of nuclear weapons, when one had regard to their known effects.

Among these principles were the prohibition against causing unnecessary suffering, the principle of proportionality, the principle of discrimination between combatants and civilians, the principle against causing damage to neutral States, the prohibition against causing serious and lasting damage to the environment, the prohibition against genocide, and the basic principles of human rights law.

In addition, there were specific treaty provisions contained in the Geneva Gas Protocol (1925), and the Hague Regulations (1907) which were clearly applicable to nuclear weapons as they prohibited the use of poisons. Radiation directly fell within this description, and the prohibition against the use of poisons was indeed one of the oldest rules of the laws of war.

Judge Weeramantry’s Opinion also draws attention to the multicultural and ancient origins of the laws of war, referring to the recognition of its basic rules in Hindu, Buddhist, Chinese, Judaic, Islamic, African, and modem European cultural traditions. As such, the humanitarian rules of warfare were not to be regarded as a new sentiment, invented in the nineteenth century, and so slenderly rooted in universal tradition that they may be lightly overridden.

… Judge Weerarnantry’s analysis includes philosophical perspectives showing that no credible legal system could contain a rule within itself which rendered legitimate an act which could destroy the entire civilization of which that legal system formed a part. Modern juristic discussions showed that a rule of this nature, which may fmd a place in the rules of a suicide club, could not be part of any reasonable legal system – and international law was pre-eminently such a system.

The Opinion concludes with a reference to the appeal in the Russell-Einstein Manifesto to “remember your humanity and forget the rest”, without which the risk arises of universal death. In this context, the Opinion points out that international law is equipped with the necessary array of principles with which to respond, and that international law could contribute significantly towards rolling back the shadow of the mushroom cloud, and heralding the sunshine of the nuclear-free age.

The question should therefore have been answered by the Court–convincingly, clearly, and categorically .

(Incidentally, Judge Higgins, who wrote this dissenting opinion in that case, was my professor at London School of Economics in 1991-92; she was a main inspiration for my intense interest and publications on international law; I reviewed her classic Problems and Process: International Law and How We Use It.)

Note how Weeramantry’s opinion relies on general, traditional principles of international law and even appeals to general legal theory, common sense and notions of common decency, the universal, humanitarian laws of warfare as recognized in various cultures, etc. Such appeals to tradition, common sense, general legal principles, in at least an attempt to do justice, to find a just solution or answer, is increasingly impossible in municipal systems that are mired with positivism and legislation as the primary source of positive law. In such a system, the judge is not free to try to do justice; his job becomes that of a technician trying to interpret the vague, conflicting words of a statute decreed by a legislature. (For more on this, see Another Problem with Legislation: James Carter v. the Field Codes; also my posts Higher Law and Live by the centralism, die by the centralism; also my article Legislation and the Discovery of Law in a Free Society, in particular section III.D, “The Proliferation of Laws.”)

(Other resources on international law are collected on legal website here.)

[LRC cross-post; Mises cross-post]

As noted on LewRockwell.com, there’s a wonderful Rap video by a young libertarian rapper, Neema V (from Houston, so he’s my homie). See the video below, and a great short interview by him on FreeTalkLive, in which Neema V goes on about the influence Ron Paul, Lew Rockwell, and Butler Shaffer had on him (Shaffer’s book Boundaries of Order is featured in the video). This young man is intelligent, thoughtful, pleasant, interesting, and talented (amazing video and song for a home-made solo production). Go Neema V! FYNV!!

From FreeTalkLive:

09/20/09

See also Jesse Walker, The Kinsley Retort.

Re: The Rise of the Libertarians

See below about Ringer’s defection from the fold–because of 9/11, the need to use the state to beat up bad ay-rabs, etc., I guess. (See also this post on Reason’s Hit and Run about Ringer’s defection, where Jesse Walker notes “I’ve always been a little embarrassed that Robert ‘Winning Through Intimidation’ Ringer considers himself a libertarian, so it is with a light heart and a bounce in my step that I report that he has left the fold. Liberty, he writes, is ‘the noblest of all objectives,’ but it ‘often collides with the dominant aspect of secular life: reality.’”)

I wonder if he’s still pro-war? Jesus. Maybe so — here he seems to yearn for the halcyon days when the Western white countries could invade and occupy the benighted swarthy countries and give them the benefits of our wonderful western institutions — but, unfortunately, we are too broke to afford to do this now (gee, I wonder why?).

***

Bomb bomp bomp, Another One Bites the Dust-a: Robert Ringer on The Survival of Western Civilization

Extracts below from a debate I had with Bidinotto about anarchy vs. minarchy.

See also Rand, Objectivism, and One-World Government. And, from LRC blog, see Objectivism v. Anarchy:

[SK: note: These links are bad now; but much of this can be seen on Roderick Long's old blog discussion.]

Discussion from Reason blog:

Anarchy Reigns

From LRC, below. And an update: another reason I expect Kindle to fail: it’s not color, no touch, slow refresh, and unsuitable for any browsing. Media pads/tablets, like the rumoured iPad, the CrunchPad, even things like Archos 5 Internet Tablet, will be the book reader of choice, in my view–many people already use iPhones and iPod Touches for this, despite their small screens.

Re: Kindle v. Netbook v. ePub, Bookworm and Stanza

Sir Roderick of Long in a recent post asks us to consider the following proposition: “1. Big business and big government are (for the most part) natural allies.” As I noted there, “Do you mean big business as it exists in today’s world, or big business per se? If the former, you have a point (and from my quick read I don’t disagree with any of your other points). But to argue for the latter interpretation would imply that there could be no big business in a free society.”

It seems that the bigger a company is, in today’s world, the more they have to “play ball” to prosper. I’m not sure, though, why this observation is limited to big business, or even business in general. Even individuals drive on public roads, and are incentivized or coerced into using public schools, say. And what about Big Medicine, Big Education, Big Research, and so on? (And let’s not forget Big Labor!)

Come to think of it–most larger charities I’m aware of continually seek state partnerships and funding, and encourage state redistribution schemes. Down with charity!

Update: A reply to “Rad Geek“:

Charles, you conclude, “So, yeah, down with Big Charity. I agree. Where’s the problem?”

But in my post that you quoted, I ended it, “Down with charity!” not down with Big Charity. My point should be obvious. I am mocking the notion that just because you are against Big Business (understood to “mean big business as it exists in today’s world,” business that is in bed with the state), means you are against business itself—or even against “big” business per se. I am mocking it by showing how ridiculous it would be for you to be against charity (or even “big” charity), just because you are opposed to Big Charity. That’s why in my comment on Long, I largely agreed with his 6 points but demurred if and to the extent the opposition to “Big Business” was meant to include “big business” (that is, any private business that happens to be big). I was also objecting to the apparent singling out of Big Business, but I’m glad to see you agree that Big Labor, etc. are equally (?) criticizable. YOu say, “Let’s set aside Stephan’s mentions of individuals driving on government roads, or sending children to government schools. Sure they do; but this doesn’t strike me as even remotely compelling, if you pause for even a second to consider matters of degree, and it’s hard to see what purpose mentioning it really serves except as a way to just sort of scatter critique as broadly as possible. Last year, the Department of the Treasury sent me a $600 check, allegedly for the purpose of economic stimulus — just like how they also cut AIG a $170,000,000,000 check last year, also allegedly for the purpose of economic stimulus. But, well, so what? I’d say it’s still pretty accurate to see AIG as having a much closer relationship with bail-out statism than I do.”

Remotely compelling for what? Your criticism is inapt. I am not comparing the sins of individuals to the sins of Big Business (which would be disproportionate, sure). Rather, I am trying to illustrate a couple things. First, that it is indiscriminate to attack anyone for merely benefitting from or even cooperating with the state; I think you and I would agree that the ones who actively lobby it and influence it like the Defense Industry etc. are far more blameworthy than a social security recipient or road-user. But this is my point. If we recognize distinctions then this means not all business—even “big” business—should be castigated the same way Big Business is. And to the contrary, Big Labor, Big Education, etc. shoudl be attacked as Big Business is—and despite your laundry list of links showing your ilk has sometimes criticized Big Labor etc., I note that in Roderick’s list he didn’t. Rather he singled out Big Business. So which is it?

My post was one of agreement with Roderick, with the caveat that I thought it was unclear whether he was castigating “Big Business” or any “big” business. If the latter, I disagree—for some of the reasons I gave (namely that if you indict all “big business” then your threshold for sin has to be so low that you indict almost everyone, mom and pop stores, people who drive on roads, etc.). And I notice that neither Roderick in his comments, nor you here, have tried to clarify. Ratheer you seem to dodge the question by saying you against Big Charity—implying you are not against charity (or even big charity)—but without specifying whether likewise you are against Big Business but not against business (or “big” business). Well? What’s your position?

[LRC cross-post]

The wonderful and prolific Gary North (see his excellent speeches and articles on career versus calling, and his great M.I.T. Calls Academia’s Bluff, for example) has a great piece: How Lew Rockwell Copied Leonard E. Read and Took Over the Libertarian Movement. North explains how Rockwell built up the Mises Institute, then, with Jeff Tucker, Mises.org, the most amazing resource for liberty and sound economics in the world. (See also Tucker’s speech Dissident Publishing: Then and Now, which is appended below.)

Rockwell’s dominance of principled, economically-literate libertarianism is obvious. He runs the incredibly popular and influential LewRockwell.com, not to mention being the founder of the Mises Institute. He has been anti-war on principle, from the beginning, and has never wavered, unlike various DC sellouts and unprincipled, flighty utilitarian types. His speaking appearances yield standing room only crowds, thousands of people cheering, and ovations. His books sell well, as do those of the Mises Institute (not to mention the hundreds of thousands of books downloaded for free from Mises.org) and affiliates like Ron Paul and Judge Napolitano.

A friend who attended the Mises Circle in Seattle recently told me:

The Mises Circle meeting was brilliant. All the speakers were good–Bob Murphy’s speech was funny and entertaining. But the real highlight was seeing Lew get two standing ovations. That is how we DO in the Evergreen state …

Another friend who attended added,

It was great. Lew’s talk was fantastic and deserving of more than just two standing ovations. Everyone there only wished they were even half as heroic as Lew.

I’ve personally known Lew since about 1988 or so. I was visiting my friend Jack Criss, then a libertarian AM radio talk show host in Jackson, MS, and was in the studio while Jack interviewed Lew; during a commercial, I talked to Lew and told him how much I admired his superb The Free Market Reader and other work (we had already corresponded, I believe). I met him in person for the first time in 1994, as I noted I here:

When Hoppe’s second English-language book, The Economics and Ethics of Private Property, came out in 1993, I decided to do a review essay for a law review; the review was published in 1994 in the St. Mary’s Law Journal. I promptly sent it to Hoppe, who sent back a warm thank you note.

By mid-1994 I had moved to Philadelphia (I was there for three years, until I returned to Houston in 1997, where I reside today), and resolved to attend the John Randolph Club meeting in October 1994, near Washington, D.C. My primary goal was to meet Hoppe, Rothbard, and Rockwell. I was thrilled to meet them, and was able to get Murray to autograph my copy of Man, Economy & State, which he inscribed “To Stephan: For Man & Economy, and against the state –Best regards, Murray Rothbard.” Well, I know the nicer one-volume edition is out now, but just try to get me to part with my musty two-volume copy. Rothbard unfortunately passed away on January 1995, but I shall be forever grateful that I was able to meet him.

So I’d say for over 20 years I’ve admired Lew Rockwell–it’s always amazed me that he is so consistently correct and perspicacious, so principled, so productive–and so nice, sincere, and humble in person. My personal view has long been that the main social problem is economic illiteracy, and thus our chief hope is economic education–and therefore, the Mises Institute. I literally believe the Mises Institute to be just about the most important institution in the world, by far the most deserving of my donations, and Lew Rockwell therefore to be one of the greatest libertarians ever.

As an example of Rockwell’s insightfulness, he had a great post the other day, No More Marches on DC, in which he points out how disgusting DC is: from its

“National Mall,” the government grass that extends from Lincoln’s Roman temple — where he sits enthroned like Jupiter, fasces and all — to George Washington’s obelisk, an Eqyptian monument to the god Amun-Ra. In the distance is the capitol, whose dome copies the Roman pantheon, temple to all the gods. In the top of the dome is a painting of Washington being assumed, like the divinized Julius Caesar, into Heaven upon his death. Even Jefferson is portrayed as a god in a Roman temple. Not far away is the the Greek temple where the nine supremes hand down the “law.” Then there is the vast executive apparatus, headed by a living god, and dedicated to killing, spying, taxing, redistributing, inflating, and controlling, symbolized by the Pentagram. Really, DC is one nasty place.

Thus, Rockwell rightly concludes, “why would anyone concerned about the state and its power ‘march on Washington’? Such events only dissipate energy, and fool people into thinking that their time and money have accomplished something, as the regime laughs up its sleeve. Indeed, that is the purpose. So stay home. Read, write, work, organize, and avoid DC like the plague it is.”  Bob Higgs, another hero of liberty, is also skeptical of the value of the demonstration.

Amen, brother. I have heard that some DC libertarian types think such comments critical of DC must be motivated by “jealousy.” Yep: they think those not in DC are jealous of those who are (I kid you not). Such views are a symptom of the very problem with being in DC: those there get sucked into the desire to be “relevant” and the false idea that DC is the most important thing in the world. They simply cannot understand the derision and contempt real libertarians have for that “nasty place.”

I can appreciate Rockwell’s comments–I personally detest DC. My brother lived there for years, and I visited many times, especially when I lived in Philadelphia for a few years. All the DC denizens have this smug, condescending attitude, and think DC is the center of the universe; all they talk about are politics and Senators’ wives and cocktail parties and blah blah blah. What I hate about it is the underlying presumption that this is all legitimate and fine. And that all those poor benighted taxpaying saps in the hinterlands who are not privy to the gossip and talk about what bills are “on the hill” etc. are just unsophisticated rubes who don’t matter. It would take a DC mentality distortion field to think real people are “jealous” of DC.

[LRC cross-post, and FYLR!]

As Gary North noted in M.I.T. Calls Academia’s Bluff,

The Massachusetts Institute of Technology has begun the most revolutionary experiment in the history of education, stretching all the way back to the pharaohs. It now gives away its curriculum to anyone smart enough to learn it. It has posted its curriculum on-line for free. These days, this means a staggering 1900 courses. This number will grow.

It’s now available on iTunes U. This is so amazingly incredible.
[LRC cross-post]

Incisive comment made by one Charles Anderson on a Facebook page: “The U.S. troops in Iraq & Afghanistan must be home now. How else to explain the silence of Miss Garafalo, Mr. Springsteen, and Mr. Penn?”

Update: Jonathan Shusta writes:

Also in the same vein as Garafalo et al. is the lesser known internet comic “get your war on” by David Rees. It began on october 9, 2001; guess what day it went silent? January 20, 2009.

Spencer Hahn writes:

Although I am not shocked by the silence of the celebrities and politicians who vociferously opposed the war when it was headed by Bush, I am pleased to see that the World Can’t Wait — which has protested against the Afghan and Iraq wars since the beginning — continues to oppose what are now Obama’s wars.

Please give them the publicity that they deserve, and be on the lookout for them on October 5th, when they will hold a “Protest at the White House against Obama’s Wars.”

P.S. I’m proud to say that I had the honor of successfully defending (pro bono) one of the WCW’s protesters in Portland, Oregon, after a trumped up series of arrests a few years ago at the October 5th protest.  The nearly dozen co-defendants all won their cases after nearly 18 months of waiting for their day in court.

[LRC cross-post]

My 6 year old asked me today what the date was. Recalling yesterday was 9/11, I told him today was the 12th. I then asked him if he knew what yesterday was. As he tried to figure out what I was getting at, he said, “…. a … holiday?” I said, no, not exactly. Then, he remembered: “Oh! When the tourists knocked down the Twin Towers!”

[LRC cross-post]

Over on the LRC blog, there were some posts about the jailing of tax protestors; the following was my comment:

David,

Yes, Irwin Schiff is–tragically, shamefully–in jail for tax evasion, “Because the judges who sit in judgment of him are paid their salaries by income taxes.” At least indirectly. But taxes are clearly not voluntary, and it is illegal to evade income tax. If the courts of a given system actually enforce a rule–provide penalties for not following the rule–this is what it means for the rule to be a law. It’s a positive law, to be sure–but a law. And it’s not only the courts–it’s the legislators, too. The tax protestors are simply wrong to say it “is” not illegal to evade income tax; it clearly is illegal, since the legal system does impose penalties for this conduct. Furthermore, the tax protestors are wrong to argue that this law is not provided for by statute. It is. And if they ever succeeded in persuading some judge that it was not, the tax statutes would simply be clarified to plug the hole.

Often the tax protestors adopt a sort of hyper-natural law stance in which they capitalize Law, in a crankish and quasi-mystical way, and refuse to even call something Law if it is not just. This has echoes of the Hart-Fuller debate where Fuller took the “natural law” view that law and morals cannot be “separated.” Hart took the “legal positivist” view that there is a difference between what law is and what it should be. I’ve always found this debate to be frustrating because the natural law side, with which I’m of course more sympathetic, seems confused and to misunderstand the positivist position. The basic idea of legal positivism–that it is possible to identify something as a law, even if it is unjust–seems to me to be obviously correct, and not even contrary to natural law thinking. It is currently illegal to sell cocaine or one’s body for sexual services or to evade income tax–but it should not be. Just law–law compatible with libertarian principles–is what positive law should be. Libertarian law, just law, is like a template or ideal by which actual, enforced law can be compared, or aspire to. (For discussion of the role of abstract libertarian principles being used to develop more concrete ethical and legal rules, see my Knowledge, Calculation, Conflict, and Law, pp. 60–63; and The Limits of Armchair Theorizing: The Case of Threats.)

But to determine what the law is, one must see what rules are enforced. Oliver Wendell Holmes’s “bad man” theory of law always made a certain amount of sense to me–his view that the law is a prediction of how courts behave; it’s based on the notion that bad men “care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes’s mind, therefore, it was most useful to define ‘the law’ as a prediction of what will bring punishment or other consequences from a court.” Now we must keep in mind that identifying something as law does not mean it is just.

The tax opponents often seem to try to intentionally blur this line. When they should be arguing “the current law against tax evasion is unjust and immoral,” they say, “there ‘is’ no law against tax evasion.” They want their factual, descriptive “is” word to do the work that “should” ought to be used for. But such tricks cannot work. As Brian Doherty notes in a perceptive article,

The tax honesty movement’s vision of the world is fantastical in another way. It is not merely obsessed with continuity; it is magical in a traditional sense. It’s devoted to the belief that the secret forces of the universe can be bound by verbal formulas if delivered with the proper ritual.

(See Doherty’s It’s So Simple, It’s Ridiculous; also and Five Reasons You Don’t Owe Income Tax, Dammit!) See also Huebert‘s perceptive comments about the futility of thinking we can achieve liberty by just finding the right arguments to persuade federal judges: as he notes, the authors of a book he is commenting on “seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.”

So, to sum up: the tax statutes do penalize tax evasion. The legislators want it this way. And the courts do act on this–and put people in jail. It is illegal to evade income tax. And, yes, this is monstrous–but there it is. And, unfortunately, I don’t think there’s any incantation, spell, or ritual that will persuade judges or legislators to see the light and start protecting our liberty. And given how dangerous the state is, it is prudent to recognize reality.

Update: Predictably, I’ve gotten a flurry of emails from the tax protestor types, ranging from the tired old “SHOW ME THE LAW” to “your tone is bad, it will make people think it’s hopeless,” to “I don’t care what the law is”.

As for tone comment–I think it’s prudent and not unlibertarian to be realistic and not to be self-delusional. Call me crazy. But this opposition to truthfully recognizing an unjust law is one of the reasons activism is dangerous–it makes people conflate substance and truth with tactical, strategic concerns–they start to identify truth with “what motivates or inspires or persuades people,” and conversely, if something is unpleasant, it’s “not true”–the ostrich approach to reality. I don’t think libertarianism requires one to be an ostrich or a martyr. (See my The Trouble with Libertarian Activism .)

As for SHOW ME THE LAW–Doherty discusses this:

The tax honesty folks similarly believe that their foe the IRS must also be bound by these grimoires of magic: that without the properly sanctified OMB number an IRS form holds no power, that without uttering the mystic word liable no authority to tax can truly exist.

And always, always, the ultimate incantation, The Question: Where does it say that I owe income taxes’ Show me the law!

The tax honesty types have such trouble even imagining an unjust law that they just cannot accept that tax-evasion-criminality–which is clearly unjust–can really be illegal. For clear explanations (not that the tax honesty types care) of why federal legislation is behind tax evasion laws, see Doherty’s It’s So Simple, It’s Ridiculous and Five Reasons You Don’t Owe Income Tax, Dammit!; also Income Tax: Voluntary or Mandatory?; Tax Fool; and Why I won’t join the tax protesters.

Some have accused me of legal positivism–well, sure, if you mean the belief that it’s possible to identify and recognize a given rule as a law, even if it’s unjust; but not, of course, if you mean the belief that only commands of the sovereign count as genuine law (in fact my opposition to this type of legal positivism is one reason I am skeptical of many natural law arguments: they are also positivistic in this sense, in that they believe that while the legislature may not decree true “Law” or morals, God can; they just push it back a level. My view is that not even God can make evil good).

The legal positivism (in the pejorative sense) of the natural law types can also be seen in their repeated SHOW ME THE LAW question. They are so used to the modern, positivist system of written constitutions and law-as-legislation that they seem to have trouble thinking of law as something other than “what’s written in ‘the lawbooks’”.  But a written Constitution is not the only way to have a constitution, as Britain’s centuries-old unwritten constitution shows; in fact, it’s better, I would argue, than an artificial, naive, utopian, constructivist one like the failed American one. And statute is not the only way to make law–or even a good, or legitimate, way, in my view (see my Legislation and the Discovery of Law in a Free Society). Laws are the rules that are legally enforced–as I noted above with reference to Fuller and Hart and Holmes’s realistic “bad man” theory of law–and these rules need not emanate only from “the law books” or a written Constitution. To think so is to succumb to the legal positivism that dominates our legislation-ridden age. (There are innumerable types of unwritten rules, including even unwritten “internal rules” of the state itself–see Alfred G. Cuzán’s classic paper “Do We Ever Really Get Out of Anarchy?, and his forthcoming JLS paper Revisiting “Do We Ever Really Get Out of Anarchy”.)

And this also brings us back to Doherty’s comments about the “Protestant” nature of the tax honesty movement:

Their devotion to their beliefs is certainly religious. Indeed, tax litigation consultant Daniel Pilla, author of The IRS Problem Solver, says they’re “like programmed cult members — you can’t reason with them.” More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.

This observation is not merely a pun on their status as “tax protesters.” Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability — indeed, obligation — to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.

“Case law” — the kind that proves that you can and will be arrested or fined for not filing or paying income tax — means nothing to them; they like to rely strictly on the statutes as written, or on Supreme Court cases and straight constitutional interpretation. Irwin Schiff, the godfather of the movement, is insistent that you shouldn’t just take his word for anything: You should check the statutes. He is, he declares, the biggest reseller of the published version of the U.S. tax code. He sells specially tabbed copies leading you straight to the pages in the multithousand-page behemoth you must see to understand his own interpretations.

It’s no surprise that the Protestantish “SHOW ME THE LAW” and their positivistic fixation on written documents as the only source of law mirrors the Protestant view of sola scriptura, or “Scripture alone,” and their befuddlement with the more nuanced and sophisticated Catholic view:

The true “rule of faith”—as expressed in the Bible itself—is Scripture plus apostolic tradition, as manifested in the living teaching authority of the Catholic Church, to which were entrusted the oral teachings of Jesus and the apostles, along with the authority to interpret Scripture correctly.

(See Scripture and Tradition.) The Catholic idea of a non-written, merely oral tradition or teaching befuddles Protestants. Thus, just as they say “SHOW ME THE LAW”–meaning a written statute–they ask the Catholics, “What’s Your Authority?” Think about it…

[LRC post; Mises blog post]

Sarah Palin’s ghostwriter in the WSJ opines:

Instead of poll-driven “solutions,” let’s talk about real health-care reform: market-oriented, patient-centered, and result-driven. As the Cato Institute’s Michael Cannon and others have argued, such policies include giving all individuals the same tax benefits received by those who get coverage through their employers; providing Medicare recipients with vouchers that allow them to purchase their own coverage; reforming tort laws to potentially save billions each year in wasteful spending; and changing costly state regulations to allow people to buy insurance across state lines. Rather than another top-down government plan, let’s give Americans control over their own health care.

Vouchers! How radical! And let me guess: tort reform and regulatory reform would amount to unconstitutional federal laws reaching down and changing state law.

[LRC cross-post]

Nice article by David Swanson on TomDispatch.com. As noted there, Swanson is an “Organizer” and “founder … of the website AfterDowningStreet.org, [and] was long in the forefront of those calling for the impeachment of George W. Bush and Dick Cheney — and now for bringing them to trial.” And he is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press, 2009). (And according to this post, his book due to a campaign to promote it on Amazon, caused it to reach “the #1 spot in nonfiction, knocking Glenn Beck’s bestseller briefly off its perch.”

[LRC cross-post]

Today, Professor Hoppe turns 60–happy birthday, Hans!

In honor of his birthday and achievements in the cause of economic science and liberty, he was presented with the Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe festschrift at the end of July during Mises University 2009–about a month early. And today, the Google books version has gone up too.

[Mises blog cross-post; LRC cross-post]

In Early Draft: The Conscience of an Anarchist, Brad Spangler writes:

I’m absolutely giddy right now from what I’ve read so far of a very early draft of Gary Chartier’s forthcoming book “The Conscience of an Anarchist”.

This is the sort of book that could electrify a generation. You know about all of those enthusiastic young Ron Paul supporters? I suspect more than a few will be carrying “The Conscience of an Anarchist” in their pockets as their political bible within the next couple of years.

Spangler is perhaps a bit too optimistic, but I am reading the draft now–it’s good. Certainly it will be the best of the crop of political “conscience” books–Barry Goldwater’s The Conscience of a Conservative, the execrable Paul Krugman’s doubly-mistitled The Conscience of a Liberal, Zell Miller’s A National Party No More: The Conscience of a Conservative Democrat, and moron fake-libertarian Wayne Allyn Root’s also doubly-mistitled The Conscience of a Libertarian: Empowering the Citizen Revolution with God, Guns, Gambling & Tax Cuts (I suspect Goldwater’s is more libertarian than Root’s, though I’ve read neither).

Chartier discusses his forthcoming book in this interview.

[LRC cross-post]

Tom, and you can bet certain Claremontista faux-libertarian popinjays would say this was a price “worth paying”–the same type of person who would say that “slavery is so evil that it was worth all the awful depredations of the Civil War to end it, and would have been worth more”. To paraphrase Joe Sobran’s sarcastic response to this kind of nonsense, “I’ll raise you–I’ll stipulate that a billion rapes would have been a cheap price to free a single slave” (only to re-enslave them under different form). (See also this post for more on Sobran’s reply to such nonsense.)

[LRC cross-post]

There’s a fascinating and riveting interview by Bill Moyers of David Simon, about Simon’s HBO show The Wire–referred to here as “the greatest, bravest, most truthful narrative programming ever heard on American television,” and described this way by one critic: “When television history is written, little else will rival ‘The Wire.’”And when historians come to tell the story of America in our time, I’ll wager they will not be able to ignore this remarkable and compelling portrayal of life in our cities.” And I agree it is one of the most amazing TV shows I’ve ever seen (which was on HBO–premium cable produces by far the best television recently, e.g. Californication, Entourage, the Sopranos, True Blood).

The show was amazingly honest about relationships, underclass issues, racism, crime, drugs, and so is Simon in the interview. Well worth watching, or reading. Any drug warrior needs to read this interview or watch the show. At one point Moyers asks Simon, “The character in that excerpt we just saw says, “What’s the answer?” Do you have the answer after all these years?” Simon’s answer:

Oh, I would decriminalize drugs in a heartbeat. I would put all the interdiction money, all the incarceration money, all the enforcement money, all of the pretrial, all the prep, all of that cash, I would hurl it, as fast as I could, into drug treatment and job training and jobs programs. I would rather turn these neighborhoods inward with jobs programs. Even if it was the equivalent of the urban CCC, if it was New Deal-type logic, it would be doing less damage than creating a war syndrome, where we’re basically treating our underclass. The drug war’s war on the underclass now. That’s all it is. It has no other meaning.

As for the state’s corruption, and the corruption in schools caused by state regulations, see the discussion of “juking the stats”:

BILL MOYERS: Yes, one of my favorite scenes, in Season Four, we get to see the struggling public school system in Baltimore, through the eyes of a former cop who’s become a schoolteacher. In this telling scene, he realizes that state testing in the schools is little more than a trick he learned on the police force. It’s called “juking the stats.” Take a look.

[...]

ASSISTANT PRINCIPAL: So for the time being, all teachers will devote class time to teaching language arts sample questions. Now if you turn to page eleven, please, I have some things I want to go over with you.

ROLAND “PREZ” PRYZBYLEWSKI: I don’t get it, all this so we score higher on the state tests? If we’re teaching the kids the test questions, what is it assessing in them?

TEACHER: Nothing, it assesses us. The test scores go up, they can say the schools are improving. The scores stay down, they can’t.

PREZ: Juking the stats.

TEACHER: Excuse me?

PREZ: Making robberies into larcenies, making rapes disappear. You juke the stats, and major become colonels. I’ve been here before.

TEACHER: Wherever you go, there you are.

***

And don’t miss the concluding discussion of one of my favorite scenes from the series, the scene where Det. Greggs is holding her baby by her living room window late at night, looking out the window onto the streets of Baltimore, and they recite a modified version of Goodnight Moon:

BILL MOYERS: But I want to close with some poetry. Some poetry that I don’t know whether you created or whether you discovered. But it’s that unforgettable moment in THE WIRE when we hear “Goodnight Moon.” Tell me about that before I play it for the audience.

DAVID SIMON: You know, I’m going to– I’m going to tell you that that is straight from a book that I totally admire. CLOCKERS by Richard Price. And Price wrote that episode. And he recreated it right out of the novel. It’s almost a benediction for the city. And it is the thing that, you didn’t get it if you were a politician or a police commander or a school superintendent, and you were running on your rep. You didn’t get that THE WIRE was actually a love letter to Baltimore. From your point of view, what it was, was just this nightmare that you had to like argue against.

But if you were a schoolteacher or a kid on a corner or a cop walking the beat. If you– if you were, our sentiments were always with labor, it was always at the street level. If you were one of those people, you couldn’t help but hear the affection. That this was– it may have been a conflicted lover. But it was a love letter nonetheless. And I thought that scene really caught it.

BILL MOYERS: We’ll hear it now, this love letter. Thank you, David Simon, for being with me on the Journal.

DAVID SIMON: Thank you.

[...]

DETECTIVE KIMA GREGGS: Let’s say goodnight to everybody. Goodnight moon. You say it.

CHILD: Goodnight moon.

DETECTIVE KIMA GREGGS: There you go. Goodnight stars.

CHILD: Goodnight stars.

DETECTIVE KIMA GREGGS: Goodnight po-po’s.

CHILD: Goodnight po-po’s.

DETECTIVE KIMA GREGGS: Goodnight fiends.

CHILD: Goodnight fiends.

DETECTIVE KIMA GREGGS: Goodnight hoppers.

CHILD: Goodnight hoppers.

DETECTIVE KIMA GREGGS: Goodnight hustlers.

CHILD: Goodnight hustlers.

DETECTIVE KIMA GREGGS: Goodnight scammers.

CHILD: Goodnight scammers.

DETECTIVE KIMA GREGGS: Goodnight to everybody.

CHILD: Goodnight to everybody.

DETECTIVE KIMA GREGGS: Goodnight to one and all.

CHILD: Goodnight to one and all.

Granted, some of Simon’s analyses of “capitalism” are confused–he wants to equate the plight of the poor and those ravaged by the logic of the drug war with “capitalism,” without really clearly seeing that it is the anti-market state that is causing the problems he thinks the state can help to solve. But still–fascinating interview.

Update: See also Jesse Walker’s Q&A with Simon from 2004.

[LRC cross-post]

I marked this BusinessWeek poll “big failure” to see the depressing results. Sometimes I think this country deserves to go down the tubes. Certainly everyone voting “success” here deserves to go down in flames. Terrible. We are doomed. Economic literacy is our only hope. Donate to the Mises Institute.

[LRC cross-post]

I was chatting with my son tonight whilst reading Hucklebery Finn, when we came to the part where Huck and the slave Jim are trying to get to the Free States. My son mentioned that they could use the underground railroad.

It got me to thinking. The underground railroad “was an informal network of secret routes and safe houses used by 19th century Black slaves in the United States to escape to free states and Canada with the aid of abolitionists who were sympathetic to their cause”–was a network of people helping slaves to escape, to get away from oppressive regimes.

Now, slavery means legal ownership of another person. Legal ownership means the legal right to control. Although the antebellum form of slavery has been abolished (in the US at least), the state still maintains legal ownership over us: it claims some ownership rights in our bodies when it claims the right to conscript us, regulate us, jail us for using drugs or evading taxes. So there is still slavery, of another form. It’s partial slavery, perhaps, but it’s slavery–bureaucratic, inescapable, cloying, repressive, democratic slavery. (For more on this see my What Libertarianism Is.)

So, given that there is a modern analogue to chattel slavery, namely state taxation, fines, jail, conscription, regulation–what would the modern analogue to the underground railroad be? Maybe we ought to use that as a modern metaphor: refer to institutions and ways of fighting taxation as a modern Underground Railroad, or try to design a more carefully orchestrated one designed to help people evade state taxes, etc. For example, imagine a data farm on a little island nation, or some kind of banking secrecy system, that we promulgate as The New Underground Railroad–heping you escape tax slavery. Something like that. Any legs? I’m all for it. Maybe we need… The Underground Railroad Party…

Update: from readers:

• You may want to take a look at Tim May’s Cyphernomicon, which he wrote in 1994; an adaption appeared in Vernor Vinge’s “True Names.”
• The underground railroad ends in New Hampshire: that’s where liberty is taking its last stand. If it (the freestateproject) doesn’t work there, then all hope is lost.
• It’s called expatriation, Stephan. That’s about the only route out of this Leviathan legally.
• I brought an idea like this up when I attended [a libertarian seminar]. I said that there should be networks of nonviolent, civil disobedience that help conceal and defend tax evaders, etc before and after capture, respectively. I don’t know if the libertarian movement is strong enough yet to have an effective network, but that’s how the ball will role when the game really gets going.
• Thank you for this excellent post and your suggestion for a new, modern Libertarian analogue. Well done! I’d like to recommend a companion analogue / battle cry: in the words of Butler Shaffer’s two year old grandchild, “let’s break the cage.” – Onward and upward!

[LRC Cross-post; Mises cross-post]

See John C. Dvorak’s article — Special Report: Is US Chief Information Officer (CIO) Vivek Kundra a Phony? and “No Agenda” piece The Vivek Kundra “Hollow” Deck. It’s also discussed on this week’s TWIT (see also Om Malik’s Dvorak Raises Doubts About U.S. CIO Kundra. White House Calls the Report “Highly Inaccurate” & “a Lie.” Kundra Speaks up). Dvorak seethes with justified scorn at this obvious case of cronyism, where some guy is anointed by the New York Times as some kind of “techno-wiz”. Dvorak says he got suspicious when he heard Kundra talking like an amateur about things like Twitter and Google Docs: “During one of his testimonies before a Congressional committee he even talked about the future being something like the Star Trek holodeck. His clichés and commentary was that of a 18 year-old blogger who just got their first Macintosh.” Hahahah.

When Dvorak looked more deeply into Kundra’s background, he noticed several anomalies: he claimed he was “CEO” of his own one-man company that he ran out of his living room (CEOs manage people; legitimate one-man companies don’t have “CEOs”); he claimed to have received “his master’s in information technology and his bachelor’s in psychology and biology from the University of Maryland,” though, as Dvorak notes. “The biology bachelor’s comes and goes from his bio, but the University has no record of his biology degree either.” Apparently he has no biology degree despite having claimed this in the past. And his psychology degree apparently came from the University’s “University College” location, which is apparently not the same as the University of Maryland itself (more resume fudging?).

But as Dvorak notes, even if Kundra is “squeaky clean he has no business being the USA CIO controlling billions and billions of dollars in government contracts. …He hasn’t done anything to warrant this appointment. There are no great policy papers. There are no books. There is no invention. There is nothing but vague tech positions in city and state governments.” And what has he done so far? Blew $18 million of taxpayer money on the “recovery.gov” website. As Dvorak notes, “What website[] costs $18 million? … The incredibly popular Digg.com, one of the most advanced news gathering sites in the world was initially coded from scratch for between $1200-2500 according to one of its founders. Tools to develop fancy websites have improved drastically over the years and now it costs less for fancy sites, not more. So where is the $18 million going? I can assure you that people who pay attention bugged out their eyeballs at a website expense of $18 million.”

[Cross-posted at LRC]

I find the Bill Maher, fake libertarian, to be loathsome. But sometime he makes a good point, as here, where he mocks a health-care reform protestor at “a recent town-hall meeting in South Carolina [who] stood up and told his Congressman to ‘keep your government hands off my Medicare,’ which is kind of like driving cross country to protest highways.”

[LRC crosspost]

“Coercion” is annoying, but coercion is neutral

Update: Roger Pilon’s Corporations and Rights: On Treating Corporate People Justly also has some very good stuff on why limited liability does not give any special privilege to shareholders.

Legitimizing the Corporation

In Defense of the Corporation

October 27, 2005 4:38 PM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (55)

Piet-Hein van Eeghen’s article “The Corporation At Issue, Part I: The Clash With Classical Liberal Values and the Negative Consequences for Capitalist Practices,” in the latest issue of the JLS, argues that “the corporate form of business organization is inherently incompatible with the principles of classical liberalism.” (Further summary of van Eeghen’s piece reprinted below.)

I have elsewhere posted a brief reply to other libertarian critics of the corporation (that reply is reprinted below), and more or less defended the pro-corporation view of Objectivist Robert Hessen. Part II of van Eeghen’s article, to be published in JLS 19.4, will offer a critique of Robert Hessen’s defense of the corporation, but I will go ahead now and summarize some of my comments on Part I.

I found most of van Eeghen’s arguments to be beside the point, at least for what to me is the basic question, which is: does respecting corporate status violate anyone’s rights?

Van Eeghen implies it does, because of limited liability. It seems to me that the corporation basically says shareholders are not liable for contractual obligations of the corporation. Obviously this could easily be recreated solely using private contracts. The person or company who does a deal with ABC Corp. is in effect agreeing not to pursue the assets of the shareholders if the company owes him money. So whose rights are violated?

As for tort liability–well, I am not aware of corporate law limiting the liability of any person, shareholder or otherwise, for torts he commits. In libertarian law, if you have a complex organization or business, you need to show some given person is responsible for the tort committed by someone else if you want to hold them responsible. It’s a causation question (Pat Tinsley and I go into the issue of causation and responsibility in Causation and Aggression).

If the FedEx truckdriver negligently runs over you, is the shareholder responsible? Well, why would he be responsible in the first place? Because he gave a bit of money to the company? But so do customers! And banks. And suppliers. (And actually, most shareholders never gave money to the company–they bought the shares from a previous shareholder.) Because they control the company’s actions? Well they had no more influence over the concrete decisions of the truck driver, or his direct supervisor, than an influential creditor or customer. The point is if you can make a case that a given person other than the one directly responsible (the truck driver) is causally, jointly liable, fine–then under libertarian principles this person is also liable. In such a case I am not aware that corporate law grants them immunity from suit; and if and to the extent it does, then it should not (I don’t think it does but would need to check this).

If there is a problem with the law in this regard, it is with the law’s failure to assign liability according to sound principles of causation. If some critic of the corporation thinks some managers, and perhaps some directors, in a given incident are causally responsible for the tort, then fine, say so, and make the case. I would not oppose this in general. I believe it’s very difficult in most cases to connect the actions of the shareholder to damage caused by an employee of a company in which the shareholder holds stock. But if it could be shown in a particular case, then fine, he is liable. What has this to do with corporate law, which as far as I know primarily is aimed at limiting the liability of shareholders for contractual debts of the company–which is perfectly libertarian.

***

From Roderick Long’s summary of the JLS issue:

Walter Block has argued in an earlier issue — JLS 16.4 (Fall 2002) — that “Henry Simons Is Not a Supporter of Free Enterprise.” In “The Corporation At Issue, Part I: The Clash With Classical Liberal Values and the Negative Consequences for Capitalist Practices,” Piet-Hein van Eeghen offers a qualified defense of Simons by taking up what he sees as one of Simons’s key insights: that the corporate form of business organization is inherently incompatible with the principles of classical liberalism.The problem with the corporate form is that it grants to private business a distinctive governmental feature — legal personhood, and the accompanying privilege of limited liability — without the correlative burden of democratic accountability; granting such a status, van Eeghen argues, constitutes an un-libertarian surrender of individual responsibility, and confers the benefits of ownership without its corresponding costs, thus enabling corporations to concentrate power and externalize risk in ways to which libertarians should object. (Part II, to be published in JLS 19.4, will offer a critique of Robert Hessen‘s defense of the corporation as an institution.)

***

Legitimizing the Corporation [from LRC blog]Marginal movements tend to draw their share of nuts and cranks; unfortunately, libertarianism is no exception. In addition to claims that we don’t (not “shouldn’t” but “don’t”) owe income tax, or “that hiring an attorney means abandoning personal sovereignty before the law, or that having a yellow-[or gold-]fringed flag in a room means you are under martial [or admiralty/maritime] law,” there are also a fair number of libertarians who view the modern corporation with suspicion. They are concerned that the corporation is viewed as a “person” and believe, erroneously, that corporations shield corporate employees from liability for negligence.

I usually find that the opposition to corporations comes from leftists, or, if libertarians, from ignorance of contract and corporate law…. most people don’t even realize that if a FedEx truck runs you over negligently you can sue the driver. They think he is immune from suit or something. But it is the other way around; if a FedEx truck negligently hits you, it is of course the driver that is responsible. His employer is responsible for its employee’s own negligence and liability only because of the doctrine of respondeat superior; but if the employee is found to be non-negligent, the employer-corporation is off the hook too. This is in fact why corporations usually defend their employee and themselves when sued for the employee’s actions.

But opposition does not always stem from ignorance of the law or leftism: for example, one critique comes from two libertarian-Austrian attorneys: “De-legitimizing the Corporation: An Austrian analysis of the firm”, Jeffrey F. Barr & Lee Iglody, Austrian Scholars Conference 7, March 30-31, 2001, Auburn, Alabama.

Robert Hessen’s (a Randian) In Defense of the Corporation is a good defense of corporations. He shows that they don’t require privilege from the state to exist; they can be constructed from private contracts. One of Hessen’s articles nicely summarizes some of his views. Some excerpts are pasted below. My view is that corporations are essentially compatible with libertarianism. As for voluntary debts being limited to the corporation’s assets; this is no problem since the creditor knows these limitations when he loans money. What about limited liability for torts or crimes? As mentioned, the person direclty responsible for a tort or crime is always liable; sometimes the employer (which is often a corporation) is also liable for the employee’s actions, via respondeat superior. Who else should be responsible? In my view, those who cause the damage are responsible. Shareholders don’t cause it any more than a bank who loans money to a company causes its employees to commit torts. The shareholders give money; and elect directors. The directors appoint officers/executives. The officers hire employees and direct what goes on. Now to the extent a given manager orders or otherwise causes a given action that damages someone, a case can be made that the manager is causally responsible, jointly liable with the employee who directly caused the damage. It’s harder to argue the directors are so directly responsible, but depending on the facts, it could be argued in some cases. But it’s very fact specific. Perhaps the rules on causation should be relaxed or modified, but this has nothing to do with there being a corporation or not–for the laws of causation should apply to any manager or person of sufficient influence in the organization hierarchy, regardless of legal form of the organization (that is, whether it’s a corporation, partnership, sole proprietorship, or what have you).

Excerpts from the Hessen article–

The actual procedure for creating a corporation consists of filing a registration document with a state official (like recording the use of a fictitious business name), and the state’s role is purely formal and automatic. Moreover, to call incorporation a “privilege” implies that individuals have no right to create a corporation. But why is governmental permission needed? Who would be wronged if businesses adopted corporate features by contract? Whose rights would be violated if a firm declared itself to be a unit for the purposes of suing and being sued, holding and conveying title to property, or that it would continue in existence despite the death or withdrawal of its officers or investors, that its shares are freely transferable, or if it asserted limited liability for its debt obligations? (Liability for torts is a separate issue; see Hessen, pp. 18-21.) If potential creditors find any of these features objectionable, they can negotiate to exclude or modify them.

Economists invariably declare limited liability to be the crucial corporate feature. According to this view the corporation, as an entity, contracts debts in “its” own name, not “theirs” (the shareholders), so they are not responsible for its debts. But there is no need for such mental gymnastics because limited liability actually involves an implied contract between shareholders and outside creditors. By incorporating (that is, complying with the registration procedure prescribed by state law) and then by using the symbols “Inc.” or “Corp.,” shareholders are warning potential creditors that they do not accept unlimited personal liability, that creditors must look only to the corporation’s assets (if any) for satisfaction of their claims. This process, known as “constructive notice,” offers an easy means of economizing on transactions costs. It is an alternative to negotiating explicit limited-liability contracts with each creditor.

Creditors, however, are not obligated to accept limited liability. As Professor Bayless Manning observes; “As a part of the bargain negotiated when the corporation incurs the indebtedness, the creditor may, of course, succeed in extracting from a shareholder (or someone else who wants to see the loan go through) an outside pledge agreement, guaranty, endorsement, or the like that will have the effect of subjecting non-corporate assets to the creditor’s claim against the corporation.” This familiar pattern explains why limited liability is likely to be a mirage or delusion for a new, untested business, and thus also explains why some enterprises are not incorporated despite the ease of creating a corporation.

Another textbook myth is that limited liability explains why corporations were able to attract vast amounts of capital from nineteenth-century investors to carry out America’s industrialization. In fact, the industrial revolution was carried out chiefly by partnerships and unincorporated joint stock companies, rarely by corporations. The chief sources of capital for the early New England textile corporations were the founders’ personal savings, money borrowed from banks, the proceeds from state-approved lotteries, and the sale of bonds and debentures.

Even in the late nineteenth century, none of the giant industrial corporations drew equity capital from the general investment public. They were privately held and drew primarily on retained earnings for expansion. (The largest enterprise, Carnegie Brothers, was organized as a Limited Partnership Association in the Commonwealth of Pennsylvania, a status that did not inhibit its ability to own properties and sell steel in other states.)

External financing, through the sale of common stock, was nearly impossible in the nineteenth century because of asymmetrical information—that is, the inability of outside investors to gauge which firms were likely to earn a profit, and thus to calculate what would be a reasonable price to pay for shares. Instead, founders of corporations often gave away shares as a bonus to those who bought bonds, which were less risky because they carried underlying collateral, a fixed date of redemption, and a fixed rate of return. Occasionally, wealthy local residents bought shares, not primarily as investments for profit, but rather as a public-spirited gesture to foster economic growth in a town or region. The idea that limited liability would have been sufficient to entice outside investors to buy common stock is counterintuitive. The assurance that you could lose only your total investment is hardly a persuasive sales pitch.

No logical or moral necessity links partnerships with unlimited liability or corporations with limited liability. Legal rules do not suddenly spring into existence full grown; instead, they arise in a particular historical context. Unlimited liability for partners dates back to medieval Italy, when partnerships were family based, when personal and business funds were intermingled, and when family honor required payment of debts owed to creditors, even if it meant that the whole debt would be paid by one or two partners instead of being shared proportionally among them all.

Well into the twentieth century, American judges ignored the historical circumstances in which unlimi