Alexander Marriott's Wit and Wisdom

2012-01-18T22:43:00.000-08:00

Reading List for Those Wishing to Counter the Non-Historical Propagandistic Ramblings of Tom Woods, Thomas J. DiLorenzo, Kevin Gutzman, et al.

The deceptive fraud that is the neo-Confederate school of American history and its radical "Libertarian" ugly brother begins with the American Revolution and culminates largely with radical Reconstruction in the 1870s. After that both schools simply break down and glom onto the general critique Austrian economists and classical liberals of all sorts have of the New Deal and the 1930s revolution that transformed the political economy of the United States.

In terms of the Revolution, this bizarre sub-culture of historians attempts to recast the tale in a couple of ways. First, the Revolution merely becomes a conservative secessionary movement from the British Empire (and thus a precursor to the attempted secession of the Southern states in 1861). This interpretation actually has a long and unrelated pedigree amongst certain European liberals and American conservatives stretching back to Friedrich Von Gentz's 1790's treatise "The Origin and Principles of the American Revolution Compared with the Origin and Principles of the French Revolution," translated into English for American audiences in 1800 by John Quincy Adams. But for the likes of DiLorenzo & co. the secession argument about the revolution and the concurrent State origin of the Union myth that goes with it are mere foundational work for the sleight of hand that occurs later in the story. For an excellent tutorial on the actual radicalism of the American Revolution, the works of Gordon S. Wood are generally an excellent place to begin. Readable, they offer the general consensus of the majority of American historians about the importance of ideas to the Revolution and its many demonstrable impacts on all of American society. Wood is also perhaps one of the most well versed people alive in the available primary source materials of the period, so his evidentiary base is always rich and meticulously detailed. This is always hilariously lacking amongst the neo-confederate historians and their various intellectual allies among more mainstream conservatives and libertarian writers and historians. This should not be taken as a blanket endorsement of everything Gordon Wood has argued or written, I have some serious disagreements with his underlying theory of history as well as his lifelong attempt to save a modified form of the old Beardist school of economic determinism (but Wood is at least upfront and honest in this, neo-confederates repeat Beard's theory of the civil war without even giving the dead man credit).

Next in line is the Constitution. Here there are some disagreements among this small group of pseudo-historians with one group, mostly the neo-Confederates, misconstruing the Constitution as some manner of State created League and then fetishizing it--much in the manner the actual Confederates did--for more on this see Jefferson Davis's opening volume of "The Rise and Fall of the Confederate Government." Radical libertarians, on the other hand, view the Constitution as a big government assault on the spirit and legacy of the American Revolution foisted upon the people by a cabal of reactionaries--Washington, Hamilton, Madison, and Wilson, et al.--and destroying the truly libertarian and successful Articles of Confederation. This view, of course, also goes back to the very events themselves. Anti-Federalists would have recognized and partially endorsed this view--though they may have been puzzled by the modern libertarian forgetfulness of just how arbitrary and tyrannical the individual state governments could be and sometimes were. The Constitution is best understood, in the words of perhaps the greatest historian on the period in the 20th century Bernard Bailyn, as the fulfillment of the revolution's hopes and promises. But for an excellent tour through the best scholarship on the matter, see the books below, all of which have some flaws, but all of which are very readable and closer to being accurate than anything found in the hackneyed screeds of Gutzman, Woods, and others.

Amazon.com Widgets

Now the 1790s, when the new government had to be run and operated. Think on it a moment. The first national republic of any size in the history of the world since Rome, cast adrift in a sea of monsters, bordering two--possibly three--foreign empires that had designs on the American continent and surrounded by hostile tribes of Indians who could quickly become auxiliaries in a foreign war against a republic that also housed an unstable and dangerous population of human slaves that might also rebel at any moment. It was a historically unprecedented and potentially quite dangerous moment and everyone knew it. What they didn't know--and had limited control over--was how to deal with the world's problems, internal finance, debt retirement, and diplomacy dominated by overbearing mercantilists. The neo-Confederates frame the whole period as Jefferson later would: as America's first brush with centralism where the country was saved by a Jeffersonian return to State supremacy and decentralization. The story is actually, however, far more intriguing and complicated. Jefferson's call for State importance fell entirely on deaf, if not enraged, ears. Even he balked at the notion of the secession in the tumultuous and, in his eyes, dangerous 1798-1799 period. Few decades in American history are as important as the 1790s, so a true and full picture of them is important. The following books get one started in that direction.

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The next way-station on the way to turning the Confederacy into a noble last chance for liberty in America is, typically, the fight over nullification. The curious thing about this is that these historians simply treat nullification as a fait accompli cooked into the system from the beginning and not a provocative invention of the moment by the most provocatively dangerous mind of the period, John C. Calhoun. The bizarre thing about this is that few controversies have as many wonderful monographs devoted to them as the nullification controversy. Some of them are below, but the truly outstanding accounts are William Freehling "Prelude to Civil War," Richard Ellis "The Union at Risk," and Drew R. McCoy "The Last of the Fathers."

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Next is the run up to the Civil War at the conclusion of the Mexican War in 1848 until the shots fired at Fort Sumter in 1861. Here the neo-confederate and radical libertarian historians tend to see the North confirming the later doctrines of the south--nullifying the Fugitive Slave Law of 1850 for instance (though they don't see the South similarly confirming the "later" doctrines of the North, arguing for Federal supremacy and military enforcement of the laws on reluctant Northern states)--while also building up the climactic narrative of an unchecked Lincoln running roughshod over the Constitution and the rights of the people (or, curiously in this interpretation, the States, which are apparently endowed by something with penultimate "rights"). The actual story is quite a bit different, which is to say familiar and obvious. But neo-confederates and radical libertarians let the facts be damned if they're presented by politically left of center historians, so go figure. The literature here is vast, but below is the best of the best.

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As always, try to read as much of the primary source material as you can and use the secondary literature as much as reference tool as possible. This is generally what real professional historians aim at—there are exceptions of course for excellent historical writers—and it’s not really all that difficult. It takes application and effort and, of course, curiosity.

2012-01-11T23:42:00.000-08:00

On Juries

An Essay, By Alexander Marriott

Is it just or reasonable, that most voices against the main end of government should enslave the less number that would be free? More just it is doubtless, if it com to force, that a less number compell a greater to retain, which can be no wrong to them, thir libertie, then that a greater number for the pleasure of thir baseness, compell a less most injuriously to be thir fellow slaves. – John Milton, The Readie and Easie Way to Establish a Free Commonwealth (1660)

Before diving into the issue this essay means to examine—jury service in a free state—some background is, at least briefly, appropriate. Dr. Leonard Peikoff, Ayn Rand’s intellectual heir and an eminent philosopher in his own right, hosts a weekly Q&A podcast. In this podcast, he fields questions from philosophical novices, young people, and otherwise intellectually curious individuals. On July 19, 2010, he answered the following question: “Should jury duty be compulsory as it is in the U.S. today?” His answer—which along with a number of other source materials is appended below after the end of this essay—was, in essence: Sure, so long as a number of conditions are met. The condition of greatest import for Dr. Peikoff was that if a jury system was decided to be essential for the effectual running of the criminal justice system (a question upon which he was agnostic)—which is a critical and essential reason for even having a government—then it was fine to issue a writ to summon a jury to judge the facts of a criminal or civil case. Further, he stated that if one established such a government, or chose to live within it’s jurisdiction—and let us be clear, there is no legal restriction to leaving the United States (except, of course, in the legal jurisdictions of certain other states)—then that implied an acquiescence “to contribute.”

Dr. Diana Hsieh, an Objectivist philosopher and Professor from Boulder, Colorado, who hosts her own internet podcast, NoodleCast, responded to Dr. Peikoff on May 19, 2011. Simply put, Dr. Hsieh’s position was that: “compulsory jury duty is just as much a violation of individual rights as is compulsory taxation or the draft. I think it’s morally wrong and I think that it’s impractical too.” Furthermore, she framed the issue as one of the initiation of force against an innocent citizen:

The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.

Her lengthy rebuttal also offered a number of alternative hypothetical scenarios by which a voluntary jury system might work. But, after asserting that there was really no reason to worry that there would not be enough volunteers for juries, she decided to address the question of what would happen if there simply were not enough volunteers: “What actually happens? Well you know what happens? The criminals go free. Conflicts don’t get resolved. And if that’s not incentive enough for people to serve on a jury—that plus the pay and experience and so on—then I think a free country doesn’t deserve to stay free. And that’s exactly the same as with the military—if people are unwilling to defend their country by taking up arms against an invader then conquest is the result that those people deserve.” Dr. Peikoff also suggested that the power to issue subpoenas was a critical pillar in a criminal justice system. Dr. Hsieh agreed and in the process summed up the nature of her objection to the act of summoning a jury with a judicial writ: “Subpoenas are not like jury duty, military service, and taxation. I think all those three things are the same, subpoenas are something different.”

In certain ways I think both Drs. Peikoff and Hsieh are correct and incorrect, though in disparate proportions. Dr. Peikoff could hardly be expected to give a very rousing defense of impaneling juries while being agnostic to the point of skepticism on trials by jury—and thus he does not. In fact, he indicated his fundamental disinterest in dealing with the question in anything resembling a complete fashion at the end of his answer: “I mean, the way we stand today, it’s a question of will the United States survive for a little while. So the question of how would juries operate in utopia? ha! I just hope people listening to me live long enough for it to come up.” That sort of prioritization is fine so far as it goes—but he could answer every question given to him in that manner if he wanted to, since they are almost all less important than the imminent demise of the Republic. Dr. Hsieh was certainly correct to actually try to delve into the principles behind juries and the process by which they are impaneled, but she erred grievously on several fronts in the attempt. First of all, comparing receipt of a writ to appear at a court to sit on a jury is not comparable to being conscripted into an army and sent off to die, nor is it in any way the same as having a tax collector continuously picking your pocket all year long and tossing you in jail for failing to help him out. The differences are quite obvious. Sitting on a jury is not deadly and while one could point to opportunity costs associated with the time spent waiting around to sit on a jury and the actual trial itself—this is a species of confusing public and private life, which I will come to later—sitting on a jury is compensated. On top of that—taxation actually physically removes money from your possession—serving on a jury may not compare to private sector work, but sitting on a jury is remunerated work.

Fundamentally, neither Dr. Peikoff nor Dr. Hsieh spent any time analyzing what, precisely, a jury is (Dr. Hsieh touched on this ever so briefly, but only in a minor digression), why we have them in the United States, or why writs are issued to impanel them as opposed to say, calling for volunteers. It strikes me as problematic to take on an institution of the greatest possible magnitude—the trial by jury—which has been fought for and bled for since Magna Carta and beyond, without at least nodding to the reasons why random writs were eventually settled on as the most equitable and logical way of assembling a jury.[1] Eight or more centuries does not, by itself, make any practice or institution sacrosanct or unassailable (Spartans tossed infants into a chasm for almost as long, for instance), but I would expect that this particular institution, which every hero of liberty from Hampden and Sidney to Locke and Shaftesbury, and from Adams and Jefferson to Madison and Marshall exalted (all knowing full well that juries were summoned through the issuance of writs from a court), would receive at least some cursory examination. At the very least simply to know how and why so many who understood so well the nature of rights and government, force and law, could have overlooked this supposed assault on fundamental unalienable rights like life and liberty. In what follows, I will examine the precise reasons why the Founders of the Republic were so concerned about trial by jury and offer some of their rationale for why juries should be assembled by use of judicial writ. Though in all frankness, they did not approach the matter as one of an initiation of force. The jury was a bulwark of liberty and everyone was committed to its preservation. As I intend to show, as a political institution, you could not, in theory, be compelled to “serve” on a jury anymore than you could be compelled to be a citizen. If you were the one, you were the other. I will then more systematically analyze and critique the answers of Dr. Peikoff, and particularly Dr. Hsieh. Condemning a country so free that it touches its citizens so little even in the grips of conquest to deserved destruction—as she does—is the sort of fodder philosophers like Sir Robert Filmer and Thomas Hobbes used to point to as prima facie evidence of the perpetual inability of men to live in freedom and govern themselves. If that is the Objectivist answer to the question “What if people don’t volunteer in sufficient numbers to staff the juries?” then no statesmen or person who lives among other men—men who are sometimes not rational or only partly so—will see much applicable value in it as a philosophy capable of dealing with the predictable problems of governance, particularly self-governance. That is, the issues surrounding the protection of the individual rights of victims and the accused in the criminal and civil justice systems. Finally, I will briefly examine what, precisely, Ayn Rand had to say, or not to say, on the subject of sitting on juries through summons, and what Objectivism offers (or does not) on the matter beyond the defense and arguments provided by William Blackstone, John Adams, Thomas Jefferson, and Alexander Hamilton, among others.

PART I

The precise origins of the English—and by extension, the American jury—is murky and uncertain. While juries existed in Ancient Greece—Athens most famously—and under the Romans for certain purposes, the American conception of the jury is surely drawn from the time immemorial experience of feudal England. For much of its early known history up to the reigns of the last Tudor monarchs, the trial by jury was literally meant to protect peers—that is, Lords, Barons, Earls, Dukes and the like, from unjust persecution by the Monarch. Ecclesiastical courts in England functioned along a separate line of jurisprudence and, after Henry VIII’s reformation, the Crown took over this alternative judicial system as well. Under Henry VIII, Mary I, Elizabeth I, and the Stuart monarchs James I and Charles I, these courts were used to liquidate political enemies—all without juries, or through a frontal assault on the integrity of juries.[2] For instance, when there were juries, they were made up only of those belonging to the official church of State—Catholic under Mary, Anglican under the others. Enemies of the wrong religion could expect little sympathy from a jury of their theological enemies in a period when they were garroting and burning each other at the stake. In addition to that, prominent enemies who could successfully gain a true jury of their peers were untouchable in effect—that is, until the accession of Henry Tudor (Henry VII) after the Battle of Bosworth Field (1485) and the subsequent establishment of the Star Chamber. In this special court there was no jury—you were judged by the King’s privy counselors. It was the flagrant abuse of this court that, among other reasons, eventually led to the English Civil Wars and the establishment of the English Republic in the mid-seventeenth century.

When the restored Stuart monarchs overstayed their welcome after the Restoration (1660) and were deposed by Parliament in 1688, a Bill of Rights was adopted. Among the “rights” Parliament laid out were: “That the pretended power of dispensing with the laws, or the execution of law by regal authority, as it hath been assumed and exercised of late, is illegal;” and, “That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.”[3]

The watching colonists across the Atlantic waged their own miniature versions of this “Glorious Revolution,” particularly in New England where the colonial charters had been destroyed by James II and a military governor imposed. In 1689, when news arrived from England that James had fled at the advance of William of Orange (William III), the colonists deposed the governor and sent him to England in chains.

Of course, the colonists basked in the Glorious Revolution just as their allies in England did. The right of trial by jury was held as a fundamentally important right that the chaotic 17^th century had finally ended by securing, once and for all—or so everyone thought. Unfortunately, while the colonists assumed this applied to all Englishmen at home or abroad, those living in England gradually developed a quite different understanding of the legal rights pertaining to Englishmen in England and those living in the colonies. During the Stamp Act crisis in 1765, the colonists declared what they assumed were their rights as Englishmen. Among them were jury trials, as they proclaimed: “That trial by jury is the inherent and invaluable right of every British subject in these colonies.”[4]

As the Revolutionary crisis mounted between 1765 and 1775, the infractions on this “invaluable right” also mounted—most notably with the imposition of vice-admiralty jurisdiction on the colonies. In effect, because the Royal authorities lost confidence in colonial juries to find verdicts corresponding to the law—for instance a jury would not convict those responsible for tarring and feathering a tax collector trying to enforce the Tea Act, or anyone responsible for the Boston Tea Party—they transferred all cases to vice-admiralty courts in Halifax, away from a revolutionary jury pool. We see this in the list of grievances in the Declaration of Independence: “He has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts or pretended Legislation: ... For depriving us, in many Cases, of the Benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended Offenses.”

Nearly all State Constitutions adopted after the Continental Congress called on the States to draft them contained clauses guaranteeing the right of trial by jury. During the debate surrounding the adoption of the U.S. Constitution in 1787-1789, statements similar to this were common among both Federalists and Anti-Federalists: “It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.”[5] Of course, this ubiquitous sentiment led to the adoption of the Fifth, Sixth, and Seventh Amendments to the Constitution in 1791. But the most expansive and striking argument made for the institutional importance of the jury was made by Thomas Jefferson in a letter to the Abbé Arnoux. “We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it;” Jefferson told his French correspondent, “and that this is the only to ensure a long-continued and honest administration of it’s powers.” But Jefferson went even further in stating the overwhelming importance of the American institutional arrangements involved in the trial by jury. Read his language here closely, particularly the second half, to fully appreciate the fundamental and foundational importance the people who survived the 1760s and 1770s gave to juries:

It is left therefore to juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people in all the three departments where that is possible.[6]

Why this primacy? Quite simply it was the complete breakdown of law enforcement through jury nullifications that stymied British attempts to enforce their trade regulations and taxes. When pushed in this way, the King’s Ministers had to choose between military repression or legal accommodation and concession; they chose the former and the Revolution came.

So, a person concerned with liberty might say, this is all well and good for the importance of jury trials, but why the compulsion? Doesn’t issuing a writ to summon a jury violate a person’s individual rights to his own body? These are important questions because they are indicative of a fundamental misconception of what a jury is exactly and what is going on when a court issues a writ to summon a jury. For the clearest and best exposition of precisely what is going on when a jury trial occurs one must turn to William Blackstone, the greatest 18^th century English legal commentator and the primary source for all American legal training for the several generations from 1770 through the antebellum period. Before delving into Blackstone’s explanation of the jury trial and why a summons had developed to impanel the jury, let us indulge in a digression to review some fundamental points about the legal system.

When a crime is committed, the legal system swings into operation to investigate the alleged crime, collect evidence, issue an indictment against the supposed criminal, arrest said person, and then subject the evidence to a trial. In a free society, the defendant is presumed innocent until a full hearing is given—in public (Star Chamber was never public, for instance)—to all the relevant evidence, and the defense has a chance to confront the prosecution’s witnesses in open court. At the beginning of the trial, the burden of proof is—logically and in conformity to justice—on the side asserting something; that is, the prosecution. It can only shift once the prosecution presents what appears to be a credible case that establishes that the accused committed the alleged crime. (Not all free societies have had trial by jury, but since ours does, the following explication relates to a society which subjects facts in trial to the judgment of a jury.)

The court has, at least, the following officers and people in it during a trial: 1) the Judge(s), appointed by the local, state, or national executive—possibly confirmed by a portion or the whole of a corresponding legislature. They can also be appointed by a special council or committee designated for selecting Judges (as in the state of New York), or in some cases directly elected by the local population; 2) the Prosecutor, another public official appointed or elected depending on the jurisdiction; 3) the Defendant, as trials in absentia are highly unusual and occur only when the accused flees to (or is already in) an outside jurisdiction from which extradition is not possible; 4) the Jury, made up of impartial people unfamiliar with the particulars of the case and unknown to the defendant, the prosecutor, and the judge, who are selected from a larger pool of people after each side of the case sifts through the candidates and eliminates those it suspects of partialities in some direction or another; and 5) some manner of recorder, traditionally a stenographer, but today often accompanied, or even replaced, by voice and video recording equipment. If we imagine our governments as full of checks and balances—executive veto to check legislative encroachment, judicial veto of unconstitutional laws, etc.—we need to remember that every individual court and trial is also a web of checks and balances to assure justice for both the victims of crimes and the accused perpetrators (since justice is not served by convicting a non-criminal while the real villain roams free).

The Judge, as the impartial expositor of law and referee of procedure and evidence, is clearly the most important single individual in the courtroom, but his role is procedural. He facilitates the scheduling of the trial, the impaneling of the jury, rules on which evidence is allowed and which is not, and matters of this and various other natures. He is the check on abuses by both the prosecution and the defense and he attempts to curb potential abuses by the Jury through the answering of questions concerning the law and the issuance of instructions on the proper manner of evaluating evidence, deliberating, and what facts need to be affirmed for conviction(s) to occur.

The Prosecutor’s main function is to marshal the evidence against the defendant in order to attain a just conviction in accordance with the law. He must check the defense if and when they attempt to blur the issues or confuse the jurors about the facts of his case. The defendant and/or his attorney must, of course, dispute the Prosecution’s case, evidence, and witnesses wherever appropriate. Even if the defendant is guilty, if a trial is sought by the defendant, then the Prosecutor must be forced to prove his case. The recorder, of course, is meant to keep a full and accurate record of the proceedings, for other lawyers and judges to review in order to facilitate appeals, but more importantly to help ensure as uniform a standard of justice across jurisdictions governed by the same laws as possible.

Finally, the jurors. Their primary purpose is to consider the evidence offered by the Prosecutor and the Defense and make a judgment, according to law, about whether the accused is guilty or not of the alleged crime(s). But their duty is as much to the law as anyone else in the courtroom. A jury can and will balk at confirming unjust prosecutions for which the evidence is insufficient for a reasonable conviction. But beyond that, if the public officials—the Judge and Prosecutor—have conducted a capricious and arbitrary trial, juries can often rebuke them in any number of ways. English and American jurisprudence demand unanimity from juries for a conviction. This is a high burden for the prosecution—to get twelve essentially random people to agree to strip a fellow citizen of his rights and property—as well it should be, when one considers how awful it would be for an innocent person to be convicted of a crime. A jury that cannot agree on conviction or acquittal will hang and a mistrial will occur. This is important as an institutional check on weak cases, abuses of prosecutorial power, and unjust laws. A lone juror can hang a jury and cause a mistrial on almost any grounds—though he cannot legally do so as a result of a bribe for instance—and this is also an essential check in cases of mistaken majorities. In terms of its character, a jury must be the following: 1) from approximately the region or district where the crime occurred unless impossible because of the nature of the case—say a mass crime, like a riot, taints the jury pool, or a sensational and well-publicized case prejudices everyone against one side or the other. This is done for speed and expense as much as holding to the idea that one should be tried as much by one’s own peers as possible; 2) impartial—they must not know the principals as much as possible or have firm prejudices about the facts of the case—in John Marshall’s paraphrase of Blackstone, the jurors “ought to be superior to every exception;” and 3) they must be random and not appointed until needed—this is for the end of preventing any attempt to corrupt the jury by making its identity unknown until the last possible moment (the same idea undergirds much of the thinking behind the Presidential electoral college)—and furthermore this is meant to make sure no one citizen is called to sit on a jury anymore than any other citizen. All have an equal interest in the fair conduct of trials and proper application of law—therefore all have an equal opportunity to sit on a jury. Selecting yourself for a particular case or jury betrays an interest in the eyes of the law for the outcome—the goal of the law is to truly get an indifferent jury unprejudiced as far as the particulars of the case are concerned: “They ought to stand perfectly indifferent between the parties,” were Marshall’s exact words. [7]

The honest application of law and the conduct of fair trials are both absolutely essential to a free society and every single citizen has a vital and overwhelming interest in them. An impartial and just criminal justice system is one of the very few paramount reasons we have a government at all. John Locke said that “The great and chief end ... of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property,” and Blackstone tied this end to his discussion of the jury system for the English citizen: “his own property, his liberty, and his life, depend upon maintaining, in it’s legal force, the constitutional trial by jury.”[8] John Adams echoed this in 1771: “In the Administration of Justice too, the People have an important Share, Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.”[9] Could juries err? Yes of course, but unlike corrupt or erroneous jurists, said James Wilson: “the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot be systematical.”[10] Their errors, though certainly not as prevalent as an unchecked Star Chamber that stacked the deck for unjust laws, unjust prosecutions and unfair trials, would be isolated to particular cases and would have no effect outside of particular courtrooms. The price, steep as it was and is, is worth it given the disadvantages and the steeper prices of the alternatives.

So what about issuing a judicial writ to wrangle this jury into existence? How do we justify that? The history of the jury is interesting in this regard. In ancient Athens, for instance, the trial system essentially consisted of an accuser (who acted as prosecutor) charging a defendant before the assembly (the accused acted as his own lawyer, though often he hired a speech writer to help him prepare his remarks). The assembly—usually upwards of 500 citizens for trials—listened to these arguments and then voted by simple majority for who was correct. If found guilty, the litigants suggested the proper penalties and then the assembly voted again—the punishment which won a majority was carried out almost immediately. When the Normans conquered England in 1066, they brought the institution of trial by battle with them—which subjected the dispensing of justice to armed combat in cases involving no conclusive independent evidence. Whoever won the court-sanctioned duel was thought to have triumphed by the will of God as a sign of his favor for the just. This system was unable to supplant the far more fundamentally democratic traditions of the feudal Anglo-Saxons, in which lay the forerunners of not only Parliament, but also trial by jury—almost certainly a holdover from the Roman era. In England, the jury trial was not automatic until after the constitutionally transformative 17^th century had come to an end. Before that—and in some cases, even afterwards—it had to be requested. This was done in informative language—one asked to be judged by “the country.” That is, anyone brought before the bar could ask that the facts the court proposed to convict them with be adjudged by twelve of their neighbors. A sheriff was then dispatched to appoint a jury to meet at the courthouse on an appointed day, with all the relevant witnesses, the judge, the defendant and anyone else who wanted to attend. These observers, or talesmen, could be called upon if the jury pool proved inadequate to seat twelve qualified jurors. Even at the earliest stages there were already procedures to dismiss individual jurors or whole juries for fear that they were biased or that the Sheriff sent to gather them had picked a corrupt group on purpose for one reason or another.[11]

According to Blackstone, the early jury system was voluntary. The Sheriff simply told people to come by on a certain day and hoped that they did so. “This jury is not summoned, and therefore, not appearing at the day, must unavoidably make default,” says Blackstone, “For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum.” If the government is instituted to protect property and to protect the individual rights of citizens—and also creating a judicial system of checks and balances that presumes the innocence of the accused, guarantees them a speedy trial with a chance to subpoena witnesses and evidence, and also a chance to have “the country” hear and judge it all—then it simply makes no sense to wait around for word of the trial to spread and volunteers to show up. Beyond that, it violates the principles outlined above, namely the principle of randomness and equality of opportunity to sit on a jury. Blackstone tells us that the old principle of jury selection had been de vicineto—from the particular neighborhood—but just as with a jury system of self-selection the authorities found “that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; ... the jury being now only to come de corpore comitatus, from the body of the county at large.”[12] Clearly present during the evolution of the jury has been a great concern with the impartiality of jurors—and great lengths are gone to in order to assure this for the accused (who in theory is always an innocent man until the moment a verdict is pronounced in open court) and for the rights of everyone else in the society.

The unwritten constitution of Great Britain and the written constitutions of the states of, and of, the United States presume that all citizens are, in fact, latent jurors. A jury was nothing more, and certainly nothing less, than, in the words of Alexis de Tocqueville, “a certain number of citizens chosen randomly and entrusted temporarily with the right to judge.”[13] The best means of impaneling a jury has taken the form, over the last few centuries, of calling a random assortment of people to the courthouse to whittle them down to a twelve citizen jury. Because of the sensitivity to the temporary inconvenience of sitting on a jury—though the interest and benefits of the jury system as a whole trump any possible narrow transient interest that can be at stake privately in any rational hierarchy of values (which cannot exist outside the context of the free society the jury as an institution is meant to buttress)—a number of protections are included. For instance, one cannot and should not be fired from their employment due to absence in what is essentially a sudden and temporary high public office. In addition, all jurors are paid some amount of money as remuneration for their services, and there are a number of exceptions in place for various circumstances and situations to exempt citizens who cannot otherwise sit on a jury.

That every single citizen of the United States is a latent public functionary (to give the most unglamorous possible name to the high responsibility of being a juror) perhaps comes as a surprise to some Americans, but that is a function of the poor nature of civic education in the Republic today. Other republics attempt to maintain a free and fair justice system without trials by juries, but not ours. Now, do the juries have to be staffed by the issuance of writs? Not necessarily. Any state is free to experiment with alternative means of assuring free, fair, and speedy jury trials with impartial jurors. My principle concern with any attempt at such a scheme would be the loss of the equality of opportunity principle that has always marked juries in Great Britain and the United States.[14] Since a jury trial is, at base, having the facts of a case judged by “the country,” that means that the whole country is to be eligible to hear them until otherwise disqualified in any particular case. Any system of self-selection will invariably find itself the victim of free-riding unless the compensatory aspect is raised to such heights that people are competing night and day to get on juries. Of course, the pitfalls of that are subjects for another day. Also, some citizens would remain oblivious to the operation of the courts and the administration of justice regardless of financial incentive—again, the jury system is meant to be the equal inheritance of all citizens. It was once considered the greatest of privileges and rights—the very essence of freedom—to be able to partake in the justice system in such an important way; or, conversely, that at the moment of the most extreme peril, you could rely on your fellows to pass judgment on you, and not an insulated group of barristers or an obliviously powerful judge. If we have come to the moment in time where that is no longer the case, then the American Republic deserves accolades for having eliminated the dangers of reposing all judgment power in the hands of judges or tribunals. The jury as an institution is truly meant to be a democratic check on the pretensions of usurping aristocratic lawyers and jurists. As Blackstone—no friend of democracy—said: “Every new tribunal, erected for the decision of facts, without the intervention of a jury, ... is a step towards establishing aristocracy, the most oppressive of absolute governments.”[15]

PART II

It should be quite obvious now that my principle objections to Dr. Peikoff’s answer relate to his agnosticism concerning the propriety and value of trials by jury. But as I have already dealt with the value of juries in Part I, I will move on to his perfunctory nod towards what consent means in a self-governed republic with a constitution designed to protect freedom and individual rights. “If you sign up...for a government you volunteer, you know, to help set up and support—you want protection, you pay the cost—then implicit in that, is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation.” Putting aside Dr. Hsieh’s reaction to this very mild call for civic mindedness for a moment, Dr. Peikoff ought to have expanded on two points implicit in his statement here. First, the idea of consent to the form of government in the jurisdiction one chooses to live in; and second, the notion that as a citizen in this or any jurisdiction, you might have to do something on occasion to make sure the Republic functions and survives. If Objectivism becomes a philosophy that promotes the bizarrely quixotic idea—and let me be clear that I do not accuse Dr. Peikoff or Dr. Hsieh of this—that one should, ever, try to exist in a free society without doing anything, ever, to support its continued existence then it will become as doomed as anarchism or the dead-end paranoia of Ron Paul and Lyndon LaRouche—all leading as surely to tyranny as arsenic to the grave.

Liberal political theory rests on the idea of consent. Not consent to tyranny. You cannot properly consent to a tyrannical government—because it ceases to be a government properly so called, but a tyranny, or a government without law (“Where-ever Law ends, Tyranny begins,” said Locke).[16] This is different from the doctrine of Social Contract in a number of important ways, but most importantly because the Social Contract, as expounded by its most prolific champion, Rousseau, called for the primacy of the “General Will” above all else. Even law meant nothing because whatever the “General Will” decided was, inherently, the law. People individually surrendered to the “General Will” all that was not reserved for them privately by the consensus. Rousseau phrased it famously in many different ways but here is a typical example: “We can see from this that the sovereign power, wholly absolute, wholly sacred, and wholly inviolable as it is, does not and cannot exceed the limits of the general agreements, and that every man can fully dispose of whatever has been left to him of his goods and liberty through these agreements, so that the sovereign never has a right to burden one subject more than another, because when the matter becomes a private one, its power is no longer competent.”[17] This is obviously quite different from the idea that men have certain unalienable rights derived from nature, and that to protect these rights they form a government to adjudicate disputes, punish crimes, and repel foreign aggression. Consent is easy in the case of the original founders—they obviously consented as they made their own government to protect their own rights, including the notion that as citizens they were all jurors in waiting to aid the judicial branches of their governments. All future immigrants also are obviously clearly identified as consenting members of the polity. As Diderot put it: “There is no individual who, discontented with the form of his country’s government, cannot go elsewhere in search of a better.”[18] Obviously North Korea did not exist at the end of the eighteenth century, but the point is still generally valid.

But what of generations unborn? Jefferson puzzled over this endlessly, positing to his friend Madison and others the notion that every twenty years or so society ought to undergo a revolution, wipe away all the past legal arrangements, and start over. Madison balked. Jefferson had forgotten his Locke. The key to consent for the unborn is that, as children, they are obviously “by the Law of right Reason” born “a Subject of no Country or Government. He is under his Fathers Tuition and Authority, till he come to Age of Discretion; and then he is a Free-man, at liberty what Government he will put himself under; what Body Politick he will unite himself to.”[19] Now this did not mean that any Government anywhere was ever entitled to treat any citizens, foreign born or domestic, as if they were without rights. Remember that the whole essence of Locke’s political theory is that rights exist in that state of nature, before government, and that men create government to protect those rights. But all countries have different idiosyncrasies and institutions that may or may not rub people the wrong way. Locke—and no one else among Enlightenment thinkers I have been able to find—did not highlight sitting on juries as such a “push” institution, but certainly it could be for some people, at least in theory (though I have never come across a primary document of a person who emigrated from the United States or Great Britain in order to flee the onerous strain of possibly being called to sit on a jury, I do not discount the possibility of finding one). So the process of consent might happen all at once, as during the Revolution and constitution-making period of the 1780s when Loyalists migrated away from the Republic, or, far more commonly during the history of the world: “the Consent of Free-men, born under Government, which only makes them Members of it, being given separately in their turns, as each comes to be of Age, and not in a multitude together; People take no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally Subjects as they are Men.”[20] There is no Social Contract, because no one ever meets with everyone else to sign anything—particularly not a blank check to be subsumed by an amorphous “General Will.” But, deciding to reside under some Constituted legal authority as opposed to another—this occurs within the United States more often than people leaving the country altogether, for the moment—is the only real form of consent one can give, outside a period of Constitution making, to the form of their government. After that, it takes active participation to alter it—if it can be altered at all, depending on the government. But, as before, no amount of consent to the form of a government can cede to that government any sort of right to usurp the unalienable rights of individuals. And it was Locke who maintained, in the wake of the Glorious Revolution he did much to foment, that any Government that became destructive of those specific ends that justified its existence lost all its consensual authority and ought to be destroyed and replaced.

In a free society—no one can be shanghaied into the armed forces in peace time or pillaged by the government in the form of taxation. One’s life is an unalienable right that the state cannot be ceded the right to dispose of—except through the delimited context of obscene and terrible criminal behavior defined by law and adjudicated through due process of law—and the government can have no pretension to making itself party to private economic transactions between individuals for the purpose of skimming some off the top. But the practical issue of how to go about funding the state then becomes a matter of some concern. Voluntary contributions are the ideal, of course, but one worries about free-riding. User fees are a possibility, but then government begins to resemble the “insurance companies” proffered by anarcho-capitalists, particularly because maintaining ultimate jurisdiction over a territory where a number of people are not contributing citizens creates a series of bizarre and unprecedented issues. For instance, if a person who contributes nothing is sued by someone who does contribute, is the former ipso facto the loser no matter the factual circumstances of the case? Or is the suit impossible until the former contributes? If a contributor murders a non-contributor, do the courts respond? These are just some of the plethora of issues that needs to be solved in a user fee system. Obviously, government is vital to a free society and people should want to contribute to its upkeep. Perhaps a way of “encouraging” volunteerism as far as the government’s maintenance goes would be a non-coercive campaign of “shaming.” For instance, if everyone contributed last year and you did not, that fact could be advertised so that your fellows might ask you about it. This is highly speculative and, of course, subject to all manner of objections. Enough on this, the point is simply that Objectivism, while concerned with the protection of all individuals against the initiation of force—as when they are drafted into the armed forces or have their paychecks pilfered—does not encourage, and should never encourage, the notion that in a purely voluntary system the non-contributing citizen is to be seen as anything approaching ideal. He is not acting beyond his rights, but if everyone followed his example the state would collapse and no one’s rights would be respected or protected at all. Can humans—over a wide swathe of territory and in political communities numbering in the hundreds of millions—achieve that sort of unprecedented and unrecorded self-discipline combined with rational thought, valuation, and action? Perhaps not if a compensated selection of days to preserve the free and fair criminal justice system is considered an unjustifiable tyrannical affront, but for now the jury is still out.

This brings us to Dr. Hsieh’s rejoinder. I no longer think it is necessary to rehash the conceptual error that occurred in relation to juries and the equivocation of sitting on them to being drafted or being robbed. But I think one particular portion of her argument deserves particular attention. In Dr. Hsieh’s argument in favor of equating juries, the draft, and taxes, she says:

And the government here is going to say, “But, look, we can’t function without people to serve on juries!” Well, yeah, that’s true, but that doesn’t justify using compulsion. The government also can’t function without money to pay rent on its courthouses, but that doesn’t justify taking that money by force, via compulsory taxation. The government can’t function without soldiers to fight if we’re being invaded or there’s a justified war, but that doesn’t justify the draft. The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.

Furthermore she states that should this purely voluntary government come into being and then cannot muster the funds or armies (or juries) needed to defend the rights of its citizens, it deserves what it gets essentially. This is good as a philosophical argument, in that it is an interesting thought and requires analysis and answer, but it more resembles a floating abstraction that anything rooted in reality. The best government that never existed in the history of the world—it relies on voluntary contributions, a volunteer jury system and a volunteer army during an invasion(!)—deserves destruction if it fails? And it does not deserve it because the ideas which motivated its policies did not work in a reality dominated by rapacious neighbors, but because the people in it were not good enough to “deserve” their freedom? How, for instance, would a serious student of history, individual rights, law, and government like James Madison have reconciled the notion that men, who could not make an unprecedented government work in a world full of bandits, deserved their demise, after writing something like this?

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.[21]

Aside from resembling every encomium ever written for Poland after a dismemberment (in the eighteenth century, not that which occurred in 1939), Dr. Hsieh’s manner of reasoning on this matter resembles quite a number of parallels, but let’s remain strictly in the American experience.

The early Republic was infested with pessimistic doomsayers—Samuel Adams and John Randolph among others—ready to proclaim that the people had proven themselves unworthy of republican government. Why? Because they did not seem particularly concerned about the well-being of the polity or their own civic roles, even in the midst of the greatest emergencies. During the Revolution they often did not join the Continental Army, they often traded scarce war supplies with the British because they paid in gold and not inflationary Continental paper, and when there was not a British Army around they seemed curiously unconcerned about paying their quota to the general war fund of Congress. During the War of 1812, large salaries were unable to fill out the authorized strength of the army, State governments threw up roadblocks to calling out the militia in the Federal service and then again when the government wanted to use those federalized soldiers for offensive operations over the border. People refused to lend the government money to finance the war not because they disputed that Britain had violated the rights of Americans, but because they wished to see President Madison and his Republican party fail. Fortunately the republic did not collapse during either of these crises, but they tell us something important—namely that even the best of populations in the history of the world during legitimate existential crises behaved in ways that were clearly counter-productive to success (and success here meant the creation and preservation of the world’s only rights respecting republic). Had a calamity occurred, would we look back and say these people “deserved” to be oppressed by British armies? I certainly hope not.

We do not need to carry around an overwhelmingly tragic historical sense, but we do need to be a bit more aware of just how rare even our compromised level of self-government is and has been. The quote at the beginning of this essay was written by John Milton just as the restoration of the Stuart Monarchy was about to occur in England. His desperate musing about the use of force to keep the Republic and make people live in liberty was undoubtedly unwise, but he was watching his countrymen clamor for the return of the son of the man they had beheaded a decade earlier to be their King. Did John Milton “deserve” to watch the restoration of a debauched admirer of absolutism to a throne he fought to eliminate from the world? Cato and Cicero did not “deserve” their fates anymore than the Greeks who did not listen to Demosthenes until it was too late to thwart Philip. Of course, their failure was partially their fault—but they no more deserved to be conquered and enslaved than a person who leaves their door unlocked deserves to be robbed and murdered.

While we should do everything to encourage and create a society than banishes all the initiation of force that we can, we cannot pretend for a moment, that that goal will produce necessarily the results we expect. This is not meant as a discouragement to trying, but simply a call to be wary—not fatalistic, just abundantly cautious—of human nature at home, but even more particularly abroad. Why? Because, while man can choose reason, life, and productiveness, history suggests that he has more often chosen the irrational, death, and sloth. Why this is the case is a fascinating and fundamentally important historical and philosophical issue, but not one I plan to tackle here.

PART III

Now, finally, what did Ayn Rand say about juries? As far as I have been able to tell, very little in her non-fiction writing dealt with the subject of juries. But, her fiction is replete with courtrooms and juries. Of course, her play Night of January 16^th features an all volunteer jury of audience members that could choose the ending of the play depending upon their verdict. Whether one could interpret the audience participation as a commentary on being summoned to sit on a jury is an open question, but not one I have been able to discover any commentary from Ayn Rand to answer. Also, Dr. Hsieh does not cite this work as evidence to bolster Objectivism’s endorsement of her views on juries. In fact, neither Dr. Peikoff nor Dr. Hsieh offers up any evidence from Ayn Rand to endorse their positions—which is an admirable refusal to indulge in competing appeals to authority. But since Objectivism is the philosophical system created and propounded by Ayn Rand I think it might have been appropriate for Dr. Hsieh, for instance, to acknowledge that if the draft and taxes are the same as the writ issued to summon a jury, Ayn Rand failed to ever make that comparison so far as I am aware. This is remarkable for two reasons. The first is that she wrote about justice, the draft, and taxes quite a lot—not to the mention the issue of the initiation of force, with numerous illustrative examples. Yet, so far as I am aware, she was silent on the jury summons. So maybe that was just an oversight, or she was simply going after the biggest offenders first, saving the jury summons for after the grand defeat of the draft (which she lived to see happen) and taxes. Perhaps, but there are passages and scenes in The Fountainhead and Atlas Shrugged that make me think that she knew why the jury system existed and the reasons—laid out in Part I—for why juries were summoned.

First, in The Fountainhead, the novel climaxes in its final part with the trial of Howard Roark for blowing up his own Apartment complex after it had been destroyed (artistically and conceptually) without his consent and in violation of his agreement to design it—the scene includes a stirring closing argument from Roark to the jury about to sit in judgment over his fate. Keep in mind, there is no question of Roark’s literal guilt—he admits to blowing up his own creation quite freely and he is caught red-handed at the scene of the crime. But the key to his acquittal is the jury (putting the lie to Dr. Hsieh’s theory that these brutally coerced juries cannot be forced to think—which may or may not be true, but I do not think the writings of Ayn Rand could ever be used to bolster such a position as it relates to the political and judicial reality of the jury box):

Twelve men sat in the jury box. They listened, their faces attentive and emotionless. People had whispered that it was a tough-looking jury. There were two executives of industrial concerns, two engineers, a mathematician, a truck driver, a bricklayer, an electrician, a gardener and three factory workers. The impaneling of the jury had taken some time. Roark had challenged many talesmen. He had picked these twelve. The prosecutor had agreed, telling himself that this was what happened when an amateur undertook to handle his own defense; a lawyer would have chosen the gentlest types, those most likely to respond to an appeal for mercy; Roark had chosen the hardest faces.[22]

Roark selected a jury of his peers—challenging many of the talesmen (Rand’s use of this word is a tipoff that she was fully versed in the technical details of juries—including the fact that they were summoned by writ)—and they, as thinking men, acquitted him in short order. This is, of course, a romantic view of the jury—not unlike that of similar artistic dramatizations of juries at the time, i.e. the film Twelve Angry Men—but well within the realm of possibility. A man who clearly breaks the law, but with a just and moral cause, often has been saved by a jury—particularly in American fiction. Without a jury, Howard Roark would have been far more likely to end the novel in prison—instead of triumphantly at the top of his masterpiece skyscraper.

In Atlas Shrugged, the situation is markedly different. Instead of being set in contemporary 1930s/1940s America, Atlas takes place in a future tantalizingly close to but beyond the 1950s. When Hank Rearden is brought before a court for hoarding his own Rearden Metal, Rand creates a dichotomy between the ordinary people who watch the proceedings in the courtroom and the judges. There is no jury this time, because, as Rand says:

According to the procedure established by directives, cases of this kind were not tried by a jury, but by a panel of three judges appointed by the Bureau of Economic Planning and National Resources; the procedure, the directives had stated, was to be informal and democratic. The judge’s bench had been removed from the old Philadelphia courtroom for this occasion, and replaced by a table on a wooden platform; it gave the room at atmosphere suggesting the kind of meeting where a presiding body puts something over on a mentally retarded membership.[23]

So, clearly, Rand was fully versed in, and in agreement with, the notion that jury trials are significant indicators of the rule of law and a free society. Their suspension is like the proverbial fire bell ringing in the night—a clear warning of impending danger. She illustrates this by having her villains eliminate Rearden’s ability to be tried before his peers. And we learn why as the scene goes on, as Rearden’s refusal to be stripped of his property and his right to his own life turns the watching crowd into his desperate supporters—much to his own surprise. These are the people that would have been impaneled on a jury had it not been suspended. In the end, Rearden is fined by the judges, but the fine is held in abeyance. The crowd cheers him, laughs at the feckless judges, and leaves Rearden puzzled that these same people are the ones driving the world off a cliff, unknowingly perhaps. His confusion extends beyond his temporary reprieve.

Should we be puzzled though that Ayn Rand did not write about juries in her non-fiction writing? As should be clear by now, my answer is no. Even the Enlightenment thinkers and founding fathers most concerned with individual rights, restricting government force to protect those rights, and juries as an institution, rarely took much time to write about them. By 1776, juries were such an overwhelmingly revered institution under assault by a capricious British government that no one thought it was necessary to pen long encomiums for their defense. By 1787, the alarm that the new Constitution might abolish juries with its silence caused many to vote against ratification and demand a bill of rights. That Bill of Rights would devote three amendments to jury trial—and not one of them for a moment viewed the eventual summons to sit in the jury box as an imposition or an example of tyrannical government. The summons was a mechanism to ensure fairness and the principle of equality of opportunity to sit on juries—as well as a speedy trial for the accused—rather than a judicial press gang to staff juries. The very notion that anyone could ever possibly call a jury summons a species of tyranny would have flipped their entire world on its head—where a long valued and fought for bulwark of liberty was suddenly something they should eradicate. They simply could never have thought of it in that manner—thus we find no objections to it in the records (as least none that I have ever seen, and I have been scouring them in preparation for this essay), nor do we find them in any of the writings of Ayn Rand that I am familiar with.

As with much else about American government and political society, it was the discerning eye and sharp pen of Alexis de Tocqueville that finally commented extensively on juries. As a Frenchman, he noticed most things that Americans were long accustomed to and felt no need to notice or defend systematically. He immediately saw that the jury was a premier political institution of the American Republic—made up of all the voting citizens across the country and thus the one institution most citizens were likely to come into direct contact with. And unlike the others, the jury box was their only way to directly participate in a vital role of the government (it remains so to this day). Even more than the judicial qualities—which as a French nobleman, he could not bring himself to admire fully—he admired the political aspects of the American jury. “They teach men the practice of equity. Each man, in judging his neighbor, believes he may be judged in his turn. That is especially true of juries in civil cases: almost no one fears that one day he will be the subject of a criminal hearing but everyone might suffer a lawsuit.” Tocqueville added, “Juries teach all men not to shirk responsibility for their own actions; without that manly attitude no political virtue can exist.” The courtroom and the jury box were classrooms where citizens learned their rights, associated with brilliant legal minds, and attained an understanding of law. Despite his Gallic prejudices, Tocqueville knew as well as Ayn Rand that: “All sovereigns who have wished to draw the sources of their power from themselves and to control society instead of letting it control them, have destroyed or weakened the jury system. The Tudors used to imprison jurors who decided not to convict and Napoleon had them chosen by his agents.”[24] The jury box and the courtroom are quintessential American settings and Ayn Rand exalted in their glorious potentialities in more ways than most great American writers. I do not think that was an accident. Nor do I think her “failure” to compare a jury summons to the draft and taxation was an accident either.

CONCLUSION

A jury is a direct democratic check on the judicial process that, over a number of centuries, has evolved from a voluntary group of peers asked to attend court on a particular day selected among the literal neighbors of the accused to a random assortment of citizens summoned on the day of trial from the wider county or district in which an alleged crime or grievance occurred. All citizens in a free country that have established their constitution to include this check within the judicial branch are latent jurors. When one seeks citizenship in such a polity, one knows that this is the manner in which rights are protected “on the ground” during the enforcement of law. There is nothing inherently wrong with establishing a polity where all citizens—by fact of citizenship—play some direct role in decision making and governance. This is what the jury system is—the direct involvement of the citizenry in the dispensing of justice. A jury is, literally, the people embodied for a temporary and limited—though fundamentally important—purpose. That purpose is primarily to judge facts in a criminal or civil case and, secondarily, to provide oversight and protection for fellow citizens in the dock on weak evidence and, more critically, they provide a check against abuses of power on the part of their appointed judicial officers. In order to aim as closely as possible to jurors that are “above all exception” it has been found necessary to abandon a principle of self-selection and institute a policy of random summons. Protections are offered for this temporary elevation to active from latent juror—lenience and dismissal for those prevented from physically being a part of the jury for a variety of reasons, pay for hours spent on the job, and protection from recrimination from other citizens due to one’s status on a jury.

Let there be no confusion. A juror is as important a public functionary as any officer created by our Constitutions. Refusing to assume the active role of the juror is tantamount to a President who refuses to enforce laws, or a judge who is perpetually drunk (this has occurred). But what should be the penalty for such a dereliction? In this case, nothing as formidable as the penalties that await those more exalted officers is necessary or warranted. While jurors are fundamentally important to the preservation of individual rights in our system, they are also quite easy to replace. Citizens who refuse to come to court or, when they come to court, refuse to sit on a jury, should be given the equivalent of a legal slap on the wrist and dismissed—perhaps with an admonishment from the judge if nothing else. While they have failed to live up to a very simple responsibility of self-government—their fellows ought never to be vindictive to the point of true injury. The summons is a tool to ensure the system works fairly, properly, quickly and cheaply above all else—it is not meant to be a bludgeon to press juries into the dock. If it ever actually became that—and let us be clear, it has never been that—then its days would be appropriately numbered. But for more than four hundred years, through usurpations, wars, legal assaults and all manner of trials—real and fictional—the jury system and the judicial writs used to call people to activity, have been among the principal pillars that have preserved liberty in happy times as well as dark.

I will end with one more quote from Tocqueville, who as a foreigner living in a country full of admirers of juries though very few actual attempts to have them, commented on the peculiar history of the institution from the standpoint of a political naturalist:

When the English adopted the jury system, they were a semi-barbarian nation; since then, they have turned into one of the most enlightened nations on earth and their attachment to the jury system has appeared to grow along with their enlightenment. They have left their own country, some to found colonies, others independent states. The main body of the nation has retained a king; several groups of settlers have founded powerful republics; but, everywhere, the English have uniformly advocated the jury system. They set it up everywhere or have hastened to re-establish it. A judicial institution which has thus commanded the approval of a great nation over centuries and has been copied enthusiastically in every stage of civilization, in every climate and under every form of government, cannot possibly be contrary to the spirit of justice.[25]

While his ardor for the imprimatur of this evidence is overstated, I think he was, nonetheless, perfectly correct.

APPENDIX

Transcript of Peikoff Answer, 19 July 2010:

“Should jury duty be compulsory as it is in the U.S. today?”

Answer: “My answer would be: I don’t see anything wrong that, because if you sign up—vol—for a government you volunteer, you know, to help set up and support—you want the protection, you pay the cost—then implicit in that, is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation. And I think the two obvious things that are required is—people to serve as a jury, unless we go to a completely judge centered system (and I don’t have a view on that, I’m not so keen on juries, but I don’t know enough to take a view) and the other is the right of subpoena. These are inherent in justice—for the government to collect the evidence and (if it’s going to be a jury) have someone to judge it. But, now don’t extend this to say “Well, then people don’t have enough to eat, if the government doesn’t have enough to eat, we can’t have function, we should sign up for welfare....” that does not follow. We’re talking about directly in the performance of the function [of the government], not in any external factor. So, I would say if the jury system is the means of deciding and you want that society paying voluntarily for it, then that implies that you’re going to contribute. Who knows, they might have a two tier system, people who are running a jury system at a discount, I don’t know. I mean, the way we stand today, it’s a question of will the United States survive for a little while. So the question of how would juries operate in utopia? ha! I just hope people listening to me live long enough for it to come up.”

Transcript of Diana Hsieh’s Response to the Same Question and to Dr. Peikoff’s Response, 19 May 2011

“So, first of all, I want to give some background context here. In a July 9, 2010 podcast, Dr. Leonard Peikoff was asked and answered a question about compulsory jury duty—about whether that was legitimate in a free society. Now his answer—which really shocked me, I have to say—was that there was nothing, nothing wrong with that. And he said, this is a quote from the actual podcast: “if you sign up for a government, if you volunteer to help set up and support it, you want the protection, you pay the cost, then implicit in that is that you will contribute the minimum which is actually required for it to perform its functions, even if that includes a certain degree of your own participation. The two obvious things that are required are people serve as a jury and the other is the right of a subpoena.” And he actually went on to talk about how he’s skeptical of jury trials, but if jury trials are the right thing, then yeah people would be obliged and could be compelled to serve on them. Now my view is the complete, complete opposite. I think compulsory jury duty is just as much a violation of individual rights as is compulsory taxation or the draft. I think it’s morally wrong and I think that it’s impractical too.

So first I want to look at how this violates rights. Basically when the government says “By the way, Greg, you have to serve on a jury next week,” and that’s what compelling that means, and you have no choice about how long the jury’s going to—or how long you’re going to be serving on this jury—or anything like that, it’s just you’re being told, you’re being compelled, “you have to go serve on this jury.” You are being forced to abandon your plans, your goals, your projects, and do their bidding. And the government here is going to say, “But, look, we can’t function without people to serve on juries!” Well, yeah, that’s true, but that doesn’t justify using compulsion. The government also can’t function without money to pay rent on its courthouses, but that doesn’t justify taking that money by force, via compulsory taxation. The government can’t function without soldiers to fight if we’re being invaded or there’s a justified war, but that doesn’t justify the draft. The fact that something is necessary for government never justifies the government initiating force to make that something happen. In a free society, force can not be initiated, ever—never never never. Even if it’s necessary—even if it’s “necessary”—that the government have this money, or have these people, in order to serve its functions. Force is only justified in retaliation—meaning against criminals, against invaders, and so on. And so, and the fact is, that the people who don’t want to drop everything in their lives and serve on some jury because a bureaucrat has called them up, that is not initiating force against anybody.

So the question is, so basically I think that juries, like taxation, like military service, has to be voluntary—people have to consent to being on a jury, they have to volunteer. Well, so the question is “But, what happens if people in a free country are not willing to serve on juries?” Well, first of all, I simply don’t think that would actually happen. I do think people would, in fact, volunteer. People volunteer to be in the military—risking their lives for a pittance of pay—they’re gonna also volunteer to be on juries too. And I think that people would be willing to volunteer, particularly if they could pick the time—if they said “Hey look, I’ve got this week free, I would be willing to serve on a jury for these five days.” And I think the reason that people would be willing to do that is because it would in fact be an interesting experience and it would be something that would be informative and you would be contributing to something that’s very good—namely locking up of criminals and getting them out of the way and letting go of innocent people or otherwise resolving civil conflicts between people, this is an important thing and it’s something that people in a free society would wish to contribute to. Now I do think that if that, if that sort of “Hey look, you can get this interesting experience,” if that’s insufficient then I do think that people should be paid. Now I don’t think there should be professional juries because being a juror is not a skill—the whole point of a jury is to be judging matter of facts which an ordinary person is competent to do—so a professional jury sort of implies that you know something about the relevant law or whatnot which I don’t think is relevant here. I don’t think that’s required or even desirable. But what you might have is people who volunteer routinely—let’s say people who are retired or people who are, let’s say, in between careers or something like that, they might be willing and able to volunteer routinely.

So I think that first of all—that’s my first point is that you would in fact have people willing to serve on juries. But on the other had, so what happens if people, if enough people don’t—let’s say, you know, what actually happens? Well you know what happens? The criminals go free. Conflicts don’t get resolved. And if that’s not incentive enough for people to actually serve on a jury—that plus the pay and experience and so on—then I think a free country doesn’t deserve to stay free. And that’s exactly the same as with the military—if people are unwilling to defend their country by taking up arms against an invader then conquest is the result that those people deserve.

Now I do think here, by the way, that subpoenas are a very different kind of case. Subpoenas are not like jury duty, military service, and taxation. I think all those three things are the same, subpoenas are something different.

You do not want to place your life and your liberty in the hands of a person who is being compelled to serve on a jury. You want a person who is motivated by his own judgment, a person committed by his own judgment to be fair and objective. You don’t want a person who is motivated by this fear of punishment if they refuse to comply. That is absolutely not safe, that is just as perilous as putting yourself under the knife of a doctor who is being forced to operate on you.

Finally I do want to address one thing, because Leonard Peikoff claims that if you support the government then you might be compelled to serve on juries. So it seems like there’s a kind hypothetical—like only if you are supporting government, if you are somebody who is wanting to kind of participate in its protections and so on. But I still think that that hypothetical changes nothing because it’s still wrong to force people even if they are people who are supporting the government. In a free society, a person is not obliged to support his government in every possible way at any given moment. The government does not have a right to call on people who support the government to say “Ok, now you must serve.” The government basically can’t demand or compel that, anything, that a person to give anything or to do anything, without violating their rights. So I think that, let’s say if a person serves in the military, it might be perfectly right for them never ever ever to pay a dime in voluntary taxes, in voluntary contributions, because they have contributed, let’s say, 10 years of their life to national defense. I think that it would be perfectly legitimate to pay less in taxes when you are a poor student, or let’s say when you’re young parents or just if you’re you know you don’t have the money that you might have later on in life. If you’re busy with your work or your kids I think it would be perfectly legitimate to say “I’m not going to do jury duty for the next ten years, but maybe I’ll do it later when I have the time.” In other words, people need to be free in a free society to contribute to the government, to the maintenance of their protection, according to their own judgment in what fits the context of the circumstances of their life, not just because the government says “Ok, you, now, it’s your turn, get over here, sit in this jury box.” That is not right, that is not the way a free society would operate.

Ayn Rand, The Fountainhead, 1989 Easton Press Edition [originally published 1943]

Part Four, Chapter 18

“Twelve men sat in the jury box. They listened, their faces attentive and emotionless. People had whispered that it was a tough-looking jury. There were two executives of industrial concerns, two engineers, a mathematician, a truck driver, a bricklayer, an electrician, a gardener and three factory workers. The impaneling of the jury had taken some time. Roark had challenged many talesmen. He had picked these twelve. The prosecutor had agreed, telling himself that this was what happened when an amateur undertook to handle his own defense; a lawyer would have chosen the gentlest types, those most likely to respond to an appeal for mercy; Roark had chosen the hardest faces.” pg. 721

Ayn Rand, Atlas Shrugged, 2000 Easton Press Edition, Two Volumes [originally published 1959]

Part Two, Chapter 4 “The Sanction of the Victim”

“According to the procedure established by directives, cases of this kind were not tried by a jury, but by a panel of three judges appointed by the Bureau of Economic Planning and National Resources; the procedure, the directives had stated, was to be informal and democratic. The judge’s bench had been removed from the old Philadelphia courtroom for this occasion, and replaced by a table on a wooden platform; it gave the room at atmosphere suggesting the kind of meeting where a presiding body puts something over on a mentally retarded membership.” pg. 476

Ayn Rand, “The Nature of Government,” The Virtue of Selfishness

“If physical force is to be barred from social relationships, men need an institution charged with the task of protecting their rights under an objective code of rules.”

“This is the task of a government—of a proper government—its basic task, its only moral justification and the reason why men do need a government.”

Ayn Rand, “Antitrust: The Rule of Unreason,” The Objectivist Newsletter, Feb. 1962

“An objective law protects a country’s freedom; only a non-objective law can give a statist the chance he seeks: a chance to impose his arbitrary will—his policies, his decisions, his interpretations, his enforcement, his punishment or favor—on disarmed, defenseless victims.”

John Milton, The Readie and Easie Way to Establish a Free Commonwealth (1660)

“is it just or reasonable, that most voices against the main end of government should enslave the less number that would be free? More just it is doubtless, if it com to force, that a less number compell a greater to retain, which can be no wrong to them, thir libertie, then that a greater number for the pleasure of thir baseness, compell a less most injuriously to be thir fellow slaves.”

STAMP ACT CONGRESS, DECLARATION OF RIGHTS, 19 OCTOBER 1765

“7^th. That trial by jury is the inherent and invaluable right of every British subject in these colonies.”

WILLIAM BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND (1768)

“In magna carta it is more than once insisted on as the principal bulwark of our liberties.”

“And this is a species of knowlege most absolutely necessary for every gentleman in the kingdom; as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects; as because his own property, his liberty, and his life, depend upon maintaining, in it’s legal force, the constitutional trial by jury.”

“This jury is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a write of habeas corpora juratorum, and in the king’s bench a distringas, commanding the sheriff to have their bodies, or to distrein them [i.e. to seize] by their lands and goods, that they may appear upon the day appointed.”

“If the sheriff by not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; ... [two alternates may eventually be named to choose the jury if other minor officials are also unable to perform the task] And these two, who are called elisors, or electors, shall indifferently name the jury, and their return is final.”

“Next, as to the time of their return: the panel is returned to the court upon the original venire, and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections, and relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas or habeas corpora) the cause is not like to be retarded through defect of jurors.”

“As the jurors appear, when called, they shall be sworn, unless challenged by either party.”

“For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed; and were supposed to know before-hand the characters of the parties and witnesses, and therefore the better knew what credit to give to the facts alleged in evidence. But this convenience was overballanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; ... the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood.”

“jurors must be omni exceptione majores.” [above all exceptions—i.e. they ought not to be challengeable based on relations with the parties, kinship, interest, etc.]

“We may here again observe, and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In it’s caution against all partiality and biass, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shewn of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty: that the select judges should be appointed by the praetor with the mutual consent of the parties.”

“Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But, next to positive proof, circumstantial evidence or the doctrine of presumptions must take place: for when the fact itself cannot be demonstrably evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily, or usually, attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved.”

“the trial by jury: a trial, which besides the other vast advantages which we have occasionally observed in it’s progress, is also as expeditious and cheap, as it is convenient, equitable, and certain;”

“the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.”

“only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.”

“The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spight of their own natural integrity, will have frequently an involuntary biass towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many. On the other hand, if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and new rule of action would be every day established in our courts. It is wisely therefore ordered, and the principles and axioms of law, which are general propositions, flowing from abstract reason, and not accommodated to times or to men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them.”

“But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or more artfully by suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice.”

“twelve indifferent men, not appointed till the hour of trial;”

“This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.”

JOHN ADAMS, DRAFT OF AN ESSAY ON JURIES, 12 FEBRUARY 1771

“While the People of all the other great Kingdoms in Europe, have been insidiously deprived of their Liberties, it is not unnatural to expect that such as are interested to introduce Arbitrary Government should see with Envy, Detestation and Malice, the People of the British Empire, by their Sagacity and Valour defending theirs, to the present Times.”

“There is nothing to distinguish the Government of Great Britain, from that of France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws.”

“In the Administration of Justice too, the People have an important Share, Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People.”

“As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavoring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes.”

“The English Law obliges no Man to decide a Cause upon Oath against his own Judgment, nor does it oblige any Man to take any Opinion upon Trust, or to pin his faith on the sleve of any mere Man.”

DECLARATION OF INDEPENDENCE (1776)

“For quartering large Bodies of Armed Troops among us:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States: ...

For depriving us, in many Cases, of the Benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended Offences:”

FEDERAL FARMER, NO. 4, 12 OCTOBER 1787

“It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.”

A DEMOCRATIC FEDERALIST, 17 OCTOBER 1787

“but what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government against the weak and helpless citizen, and who will perhaps sit at the distance of many hundred miles from the place where the outrage was committed?—What refuge shall we then have to shelter us from the iron hand or arbitrary power?—O! my fellow citizens, think of this while it is yet time, and never consent to part with the glorious privilege of trial by jury, but with your lives.”

JAMES WILSON AT THE PENNSYLVANIA RATIFYING CONVENTION, 11 DECEMBER 1787

“and moreover, it is a cheap and expeditious manner of distributing justice. There is another advantage annexed to the trial by jury; the jurors may indeed return a mistaken or ill-founded verdict, but their errors cannot by systematical.”

JAMES IREDELL, “MARCUS,” ANSWERS TO GEORGE MASON’S OBJECTIONS TO THE CONSTITUTION, 1788

“We certainly shall be always sure of this guard at least upon any such act of folly or insanity in our representatives. They soon would be taught the consequences of sporting with the feelings of a free people.”

FEDERAL FARMER, NO. 16, 20 JANUARY 1788

“the jury trial is a solid uniform feature in a free government.”

ALEXANDER HAMILTON, FEDERALIST NO. 83, 28 MAY 1788

“But making every deduction for these considerations the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success it discourages attempts to seduce the integrity of either.”

U.S. CONSTITUTION

AMENDMENT V

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

AMENDMENT VI

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

AMENDMENT VII

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

THOMAS JEFFERSON TO THE ABBÉ ARNOUX, 19 JULY 1789

“We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it’s powers.”

“They are not qualified to JUDGE questions of law; but they are very capable of judging questions of fact. In the form of JURIES therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts.”

“It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them. However it is best to have the people is all the three departments where that is possible.”

Charge to Grand Juries by Chief-Justice Jay, 1790

“Whether any people can long govern themselves in an equal, uniform, and orderly manner, is a question which the advocates for free government justly consider as being exceedingly important to the cause of liberty. This question, like others whose solution depends on facts, can only be determined by experience. It is a question on which many think some room for doubt still remains. Men have had very few fair opportunities of making the experiment; and this is one reason why less progress has been made in the science of government than in almost any other.” pg. 387

MIMA QUEEN V. HEPBURN, 1813 – OPINION BY CHIEF JUSTICE MARSHALL

“the difficulty of obtaining jurors whose minds are entirely uninfluenced by opinions previously formed is undoubtedly considerable. Yet they ought to be superior to every exception, they ought to stand perfectly indifferent between the parties; and although the bias which was acknowledged in this case might not perhaps have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way;”

[1] Magna Carta (1215) on jury trial: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” Courtesy of Fordham University, [http://www.fordham.edu/halsall/source/magnacarta.asp].

[2] Lord Macaulay, The History of England, Chapter XXI “The Summing Up”

[3] The Bill of Rights, 1689, courtesy of Fordham University, [http://www.fordham.edu/halsall/mod/

1689billofrights.asp].

[4] Stamp Act Congress, Declaration of Rights, 19 October 1765.

[5] “Federal Farmer,” No. 4, 12 October 1787; “A Democratic Federalist,” 17 October 1787; “Federal Farmer,” No. 16, 20 January 1788; Alexander Hamilton, Federalist No. 16, 28 May 1788.

[6] Thomas Jefferson to the Abbé Arnoux, 19 July 1789.

[7] Mima Queen v. Hepburn (1813).

[8] John Locke, The Second Treatise of Government, Chapter IX (1689); Blackstone, Commentaries.

[9] John Adams, “Draft of an Essay on Juries,” 12 February 1771.

[10] James Wilson at the Pennsylvania Ratifying Convention, 11 December 1787.

[11] William Blackstone, Commentaries on the Laws of England, Vol. III (1768).

[12] Ibid.

[13] Alexis de Tocqueville, Democracy in America, Volume I, Part II, Chapter VIII “What Moderates the Tyranny of the Majority in the United States”

[14] A note should be made here that not all citizens used to be considered part of the jury pool. Like voting and numerous other subsidiary rights and privileges of citizenship in the past, being part of a jury—a great honor and sign of stature in the 18^th and 19^th centuries—used to be restricted (depending on jurisdictions) by gender, race, age, wealth/property, etc. Of course, now that all, or nearly all, of those restrictions have been wiped away, jury service is now open to almost all citizens—children and criminals being notable exceptions. Consequently, perhaps, some of the prestige that used to attach to being a juror, has faded.

[15] Blackstone, Commentaries.

[16] Locke, Second Treatise, Chapter XVIII.

[17] Jean-Jacques Rousseau, On Social Contract or Principles of Political Right (1763).

[18] Denis Diderot, Histoire des Deux Indes (1783 edition).

[19] Locke, Second Treatise, Chapter VIII.

[20] Ibid.

[21] James Madison, Federalist No. 51, 6 February 1788

[22] Ayn Rand, The Fountainhead, Part Four, Chapter 18

[23] Ayn Rand, Atlas Shrugged, Part Two, Chapter 4 “The Sanction of the Victim”

[24] Tocqueville, Democracy in America.

[25] Ibid.

2011-12-17T23:18:00.000-08:00

Pirates of the 21^st Century and What to Do About Them: SOPA and the Search for an Anti-Piracy Strategy in the Information Age

Both houses of Congress are currently taking up Bills (PROTECT-IP [Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act] in the Senate; SOPA [Stop Online Piracy Act] in the House) to bring the Constitution’s grant of power in Article One, Section Eight (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”) up to date in a world of easy file sharing and copyright infringement. The language could not be more unequivocal—“exclusive Right”—and the topic received no debate in the Constitutional convention. The proposal, as they say, was a fait accompli and in an age of scribblers, pamphleteers, and all manner of inventors (Benjamin Franklin was only the most prolific of Convention attendees) it is not hard to figure out why.

There can be no serious question as to the right of content producers (the catchy 21^st century way to describe artists, writers, and inventors) to earn whatever the marketplace will bear for their productions. And there can be no serious question as to the right of Congress to legislate for their protection. Yet, the anti-SOPA polemicists have attempted to argue just those very points. In my view, this discredits them almost entirely and leaves the intellectual debate open to the pro-SOPA advocates who are themselves advocating enforcement mechanisms that leave much to be desired and—contrary to the diatribes of the other side—centralizes great power in the Attorney General’s office, not the entertainment industry. In fact, the government is very open about that aspect of SOPA. Maria A. Pallante, the Register of Copyrights, testified before Congress to this effect, saying: “The response provided by SOPA is serious and comprehensive. It requires all key members of the online ecosystem, including service providers, search engines, payment processors, and advertising networks, to play a role in protecting copyright interests—an approach I endorse. Combating online infringement requires focus and commitment. It should be obvious that we cannot have intermediaries working at cross-purposes.” Here is the interesting bit: “SOPA is also measured. It appropriately provides much broader tools and flexibility to the Attorney General than it provides to copyright owners. This is a sound policy choice at this time. The Department of Justice has experience fighting online infringers, will use resources carefully [HA!], must exercise prosecutorial discretion in bringing actions, and must plead its case to the court and obtain a court-issued order before proceeding. Put another way, while the copyright industries are extremely important (and certainly a point of pride with respect to the U.S. economy), SOPA recognizes that many sectors rely on, invest in, and contribute to the success of the Internet.” And finally: “It is for this reason that SOPA puts only limited tools in the hands of copyright owners, and provides the Attorney General with the sole authority to seek orders against search engines and Internet service providers.”

Pallante even agrees with the harebrained paranoia directed at the legitimate owners of stolen material: “Unlike the Attorney General, however, copyright owners would not be able to block domain names or websites or otherwise affect the underpinnings of the Internet. Nor does SOPA permit monetary relief for copyright owners. By targeting sites dedicated to infringement and permitting injunctive relief only, it limits the incentive for copyright owners to overreach.” A representative piece of absurdist non-sense from the “other side” can be found on the reliably misguided Huffington Post, where Dean Baker—whose chief claim to expertise is that he is something called a “Progressive”—writes: “While the name [Stop Online Pirarcy Act] may lead the public to believe that Congress is trying to keep our email pure and our computer screens safe, the real story is that the 1 percent are again trying to rig the rules so that they get as many dollars as possible from the rest of us.” The Bill, of course, does not aim at either of those things, which means Baker is either a lout or engaging in an ineffective bit of reductio ad absurdum. Also, the property owner has an absolute right to charge whatever he likes, just as the potential consumers have just as much right to pay him what he asks—even though they would have gladly paid double—or not buy from him at all at any price.

The biggest problem with the SOPA debate among politicians and pundits is a fundamental misunderstanding—by nearly everyone writing about the topic—of what is actually going on in the marketplace and the government’s obligations to property owners. And that is what is being discussed here, property owners. The government guarantees limited monopolies to individuals, both real and legal (i.e. corporations), for their artistic productions and inventions so that if I write the great American novel, I am the one who can sell it to whomever for whatever price I am willing and able to negotiate and will not have to worry about everyone else printing off “free” copies or downloading it without paying me or to whomever I license the rights. The reason the pharmaceutical companies are backing SOPA is obvious—they see it as their general interest to bolster all copyright and patent protections because without them, their ability to sell and develop products will be minimized if not completely obliterated. People in countries other than the United States, whose government either buy their drugs for them or break international patent protections and manufacture them illegally might scoff—but they are free-riding off of the innovation which the rule of patent law makes possible in the United States.

But, SOPA seeks to shift the tough game of policing patent and copyright violations off of the shoulders of the property owners—where it has traditionally always belonged, as in famous cases surrounding such giants as Alexander Graham Bell and Thomas Edison—to the Attorney General. In addition to that innovation, SOPA also seeks to change the focus away from violators (many of the biggest violators are overseas) of copyright and patent laws to the intermediary, U.S. based companies that presumably unwittingly and unknowingly are used to transact the illegal business of online piracy. This means companies like Google, Facebook, and Paypal. Under this scheme, the Justice Department will act as a go-between for property owners and the intermediary facilitators by presenting evidence to a Judge and seeking injunctions on companies that fail to respond to five-day warning notices that they are in violation of the act because their users are violating someone’s or some company’s property rights. What is actually bothersome about SOPA is not, as Mr. Baker contends, that “the problem seen by the top executives at Disney and the other promoters of the SOPA is that they want to make more [money],” or as Michael Hiltzik writes in the L.A. Times, “Right there you can see that SOPA would place a nuclear weapon in the hands of copyright holders to use against websites they don’t like,” but that it passes off responsibility to protect intellectual property rights from the owners to the taxpayers. Also, instead of trying to come up with ways to get at the true international culprits of most of the large-scale piracy on the internet, property-owning backers of SOPA are trying to hamstring social networking and commerce facilitating companies and websites that criminals are abusing as a miniscule part of their otherwise totally legitimate business.

Do the intermediaries have a responsibility when they are made aware of their being made accessories to crimes? Of course, though under the current law, passed in 1998, they are exempted from liability--see this helpful piece on the matter. If they are notified in writing by the property owners and do nothing to disassociate themselves with criminals, then they are just as much a party to the criminal activity as if they themselves were perpetrating it. Should they be more pro-active? Probably, yes. But the only way to force them is to make it a legal and fiscal nightmare to not be more pro-active. One way the government could help is to define the law better and make it easier from property-owners to sue intermediaries in court when the offender lives in another jurisdiction and the intermediary makes no good faith effort to stop itself from being used for criminal activity.

When a person steals—let us be clear, they are stealing—someone else’s intellectual property, the proper recourse is to take that person to court and get damages and legal expenses awarded to them. If the government wishes to stiffen criminal penalties for copyright and patent violators, then the Congress should do that. Certainly some stiff financial penalties and real jail time would undoubtedly be a step in the right direction. This is not a victimless crime. Unlike recreational drug use and prostitution, intellectual property theft raises the prices of artistic productions for all of us. Beyond that, it drives producers from a marketplace where their ability to profit from their efforts is greatly reduced. The resulting cultural loss is incalculable. But more fundamentally—it violates a sacrosanct right a man has to the products of his own mind and the rewards that come from them when he offers them in trade to others.

The anti-SOPA people seem more concerned with pretending that the issues at stake are, somehow, about censorship—as if protection of property from theft could ever be a tool of censorship, which is the governmental suppression of intellectual property. A classic misrepresentation of the principles and rights at stake in this argument appeared on The Economist magazine’s blog: “The battle over SOPA is a fight between two hugely creative forces. The content companies want to protect a business that is the core of modern culture; the software companies are determined to defend the innovative power of an industry that has transformed the world in the past few decades. Tension between them is inevitable; but a redrafted law could surely deal fairly with both.” First of all, the only people with any rights at stake are the property owners. Software companies are not in any tension with them, unless they are claiming a non-existent right to facilitate intellectual property theft and be blameless even if they know who is doing it, where, when and how. This is a “right” no property respecting society could ever countenance. Ironically, embracing such a ridiculous notion would make Google’s own highly protected secrets—the code for the search engine for instance—as open to non-protection and theft as anything else.

The government clearly has a role in making sure that the copyrights and patents it grants are respected as inviolately as is any real estate anyone owns in the United States. Domestically, it already does that relatively well—keeping in mind that rights violations are always going to occur and always have since 1789—but internationally the government seems feckless and weak. That needs to end and the penalties need to be Draconian. Any government that actively subverts copyrights and patents ought to be thoroughly condemned and isolated internationally—particularly in such areas as medicine. The damage of violating patents of that nature is nightmarishly horrific when one contemplates the eradication of diseases we have seen in just the last century. No one, particularly no highly trained technical expert, can, should, or will work for free or for any salary other than what a free and rights protecting marketplace rightly rewards for highly valuable and beneficial works and inventions. To expect otherwise is to live in a fantasyland that never existed and which will never exist. Man uses his mind to reason, to live for his own sake, to create values and trade them with others. This is how he survives—indeed, how he prospers. Some men have a specialized knowledge that allows them to create tremendous values that nearly everyone might want or benefit from. Those men, or the companies who have license to their work, ought not to be denied the remunerative benefits associated with those values merely because everyone might want or need them. Without a pre-existing guarantee to reap the tremendous rewards, the value would almost certainly have never been created in the first place. This seems too easily forgotten in a world where people like Dean Baker glibly prattle on about a manipulative “1 percent.” That is tremendously unfortunate. It obscures the creative process by which the world’s billions came into being and are—by and large—fed, clothed, and vaccinated against diseases that routinely wiped out untold numbers of people for millennia--see here and here for just two of the more prominent examples.

But we ought not to try to make the Attorney General of the United States the copyright bully of the world, either. Property owners are obligated to protect their property by filing suit against domestic violators, by notifying third parties that they are being exposed to civil litigation by bad actors, and by then calling in the government through the courts to enforce their rights on all concerned. That system has served the republic well for more than two centuries and the internet—despite all the glazed over “wave of the future” befuddlement—does not fundamentally alter the right and wrong of the situation. Property owners ought instead to demand, and receive, easier mechanisms of bringing suit against those stealing or knowingly facilitating the theft of their property. Property owners ought instead to demand, and receive, stiffer criminal penalties and fines against the same. And property owners ought instead to demand a vigorous international campaign, led by the Federal Government, against countries that flout copyright and patent protections up to and including the suspension of all intercourse with such regimes. But, at the end of the day, all American property owners ought to understand that their only true protection is the American people and their government. Engaging in trade with a property destroying murder machine like China is a dubious proposition at best and it strains credulity in the vein of Claude Reins in Casablanca to accept that any of them are truly shocked that their property rights are destroyed and disregarded in such places. All they can truly expect is that the government will protect their rights absolutely in the portions of the globe where that government has an established legal supremacy.

2011-11-15T22:48:00.000-08:00

Gary Johnson Either Needs to Take the Gloves Off or Drop Out

Former New Mexico Governor, and erstwhile GOP Presidential candidate, Gary Johnson has filed complaints with the FEC and FCC about his being ignored by the recent GOP Presidential Debates. But, with the current crop of eight candidates, some of whom (Rick Santorum and Jon Huntsman for instance) are barely at 1% in all recent national polls according to Gallup and Real Clear Politics, some already see too many players on the stage. Gary Johnson is, of course, claiming that his exclusion from the debates bears responsibility for his low visibility and low poll numbers (when they even exist).

But how credible is that in 2011? The voters he is appealing to are an Internet savvy lot who are currently giving Texas Congressman Ron Paul a very prominent national platform from which to speak. They are the most likely to be aware of Governor Johnson's candidacy and the most likely to be able to examine him closely on the Internet and at his campaign website specifically. Ever since 2004, and the unlikely rise of Internet candidate Howard Dean (a similarly little known governor from a small population state), the world wide web has been the means of catapulting relative unknowns with little money into the prime time. That, and book sales, were directly responsible for the meteoric rise of President--then candidate and Senator--Obama as well as Johnson's more obvious roadblock, Ron Paul.

Beyond that, Johnson's central claim--that he's being boxed out by the media--is simply untrue. For a candidate polling as marginally as Johnson he's been on television (free air time on a national level) numerous times. A quick search shows him on Fox News here, here, and here; CNN here; MSNBC here; and Comedy Central here. Obviously, this is just a sample, he's been on TV bemoaning the fact he's not on TV many additional times. He was even included in one major national debate despite polling in the Thaddeus McCotter basement. Keep in mind, it was this very same debate that sent Rick Perry into the wilderness and brought Herman Cain into the fore.

Governor Johnson's real problems are two-fold. The first is that his major competitor for libertarian leaning Republicans is Ron Paul, a man with whom he has no substantial policy disagreements (except, of course, on abortion rights; Paul is against choice, Johnson supports reproductive autonomy). Despite their being nearly simpatico on the major issues domestically and internationally, Ron Paul--as I have indicated elsewhere--is a severely flawed candidate. Anyone who actually took Paul seriously--and I think it's obvious the only person who has an interest in doing so at the moment is Gary Johnson--would have no trouble at all in gathering evidence for a compelling case for why Paul is unqualified for the position he currently holds, let alone the Presidency. And, yet, when given national platforms to appeal to Paul's supporters (most of whom are ignorant of their candidate's serious flaws), Governor Johnson routinely fails to do so--going so far as to compliment Paul with a hypothetical Vice-Presidential nomination at his debate appearance.

That is Johnson's second problem: he has been far too amiable and aloof from the realities of politics and Presidential campaigns. It is not always advisable to go negative in an election campaign--but when the man blocking you from being in the debates by monopolizing the voters most likely to support you and sucking up all the available air in the room is a moral Pygmy like Ron Paul, you have to go for the jugular. It is, literally, Governor Johnson's only hope for sparking his campaign and gaining the poll numbers he needs to get his foot in the door. You cannot win a disputed Presidential nomination by being a horrendous jerk (see Howard Dean) but you have no hope of doing so being Mr. Rogers. Either Johnson bites the bullet and takes on Ron Paul directly and splits his supporters, thereby getting himself into the debates where he can appeal to the rest of the GOP caucus and primary voters, or he gives up now and saves the time, money, and effort of continuing his current exercise in futility for another couple of months.

2011-11-04T20:08:00.000-07:00

The Curse of the Internet: Fake Historical Quotes

By Alexander Marriott

The internet is, undoubtedly, one of the greatest inventions of all time. It has revolutionized the ways in which commerce occurs, the ways in which information is accessed and exchanged, the ways in which people find romance, and the ways in which people read, generate, and comment on the news. These are merely a few of the myriad ways in which the internet daily alters and enhances the quality of the lives of anyone who has the ability and patience to access and use it.

Of course, like any inanimate object, the internet is subject to the motives and purposes of the people using it. And, like most everything else, those who are either willfully nefarious or woefully oblivious have been using the internet in ways that make professional historians cringe. Here I mean to fabricate and disseminate fake quotes attributed to a wide variety of historical actors. The motives for those doing this knowingly are diverse--they are from all political persuasions and all philosophical and religious schools of thought. Most of the people spreading these fake quotes on the internet, however, are well meaning people who think they have found authoritative succor from one of history's giants. Or, sadly for the professors amongst us, they are hapless undergraduate students in history classes who have yet to fully grasp the proper methodology involved in vetting and evaluating primary and secondary sources. That historians are so sensitive to these matters and other people who majored in something else seemingly are not suggests a disturbing lack of formal training in other disciplines about how to evaluate evidence. But that's a matter for a different day.

The desire to have quotes on topics one cares about is natural, but it is symptomatic of the propensity to error and fallacious reasoning; namely arguing from authority--argumentum ad verecundiam--and arguing from popularity (in this case, the popularity of the Founding Fathers)--argumentum ad populum. Let me be clear, evidentiary exposition from qualified authorities not taken out of context can be valid supports for an argument. But, quotes, by themselves, or out of context, are not arguments. FAKE quotes, are not anything at all except evidence that the person doing the quoting is careless and lazy—and, by implication, possibly dishonest and unreliable.

I have personally come across a number of quotes in online contexts--many on Facebook, from well meaning friends--that are obvious fakes. There are just some quotations that strain credulity. For instance, this "famous quote" from a sad Woodrow Wilson:

"I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated Governments in the civilized world — no longer a Government by free opinion, no longer a Government by conviction and the vote of the majority, but a Government by the opinion and duress of a small group of dominant men." -- Wilson is alleged to have said this circa 1916 in regret for having championed the Federal Reserve Act of 1913

Salon has already done the legwork to show that this quote is fraudulently misleading. But one only has to read the opening pages of Allan H. Meltzer's History of the Federal Reserve to gain a sense of just how proud Wilson was of the Federal Reserve for having removed the role of lender of last resort from the hands of private bankers like J. P. Morgan. The hysteria and nonsense that Ron Paul and other prominent pseudo-historians and actual anti-Semites have stirred up around banking and the Federal Reserve in particular has led to works of insanity like this. Every quote that I checked in that video is a fake--and I didn't check them all, it's too crazy to put in that much effort after the first half dozen or so flunk out.

Traveling back in time to my own period of study and interest, let's take just two of the Founding Fathers who have cottage industries of fake quotations spewing forth from them--or mangled quotations, another popular method of attaching quasi-legitimacy to an argument--Benjamin Franklin and Thomas Jefferson. Some Franklin quotes about which historians are skeptical (rightly) way very well be real. For instance, James McHenry's notes include an anecdote of an alleged exchange that occurred between Franklin and an anonymous woman as the delegates left Independence Hall having just signed the Constitution in September 1787. The woman allegedly asked Franklin if they had signed off on a monarchy or a republic and Franklin, according to McHenry, quipped back, "A Republic, if you can keep it." Of course, the quote is perfect and vintage Franklin--short and profound. It's the Poor Richard homespun that the legend of Franklin has enshrined solidly from his own day straight down to ours almost unscathed. But, for historians, there are a couple of issues that prevent them from putting much stock in this quote. For one, it's an anecdote reported by one man in an undated entry in his notes that was not widely known of until, in the 1930's, Max Farrand issued a new series of volumes on the Constitutional Convention and the State Ratification Debates--and then only as a footnote. For another, it's a little odd that a random woman would sling this particular question at Franklin. Few people--even in the Convention, where there was far more trepidation about democracy than among the people of democratic Philadelphia and democratic Pennsylvania--expected the Convention would produce anything except revisions to the Articles of Confederation, let alone the stupendous usurpation of a monarchy. It would be tantamount to asking Franklin if he were walking on Mars or Earth as he exited the building. This is not to say the exchange did not occur as McHenry remembered it--it may very well have--but it would still be extremely peculiar all the same. The sentiment of the answer, however, is perfectly consistent with the widely acknowledged fragility of the republican form of government--among the very paramount reasons for the Convention's meeting in the first place. So the quote, real or not, has found a resonance in popular, historically minded political culture that is not easy to dislodge--as seen here in this recent work from Indiana Governor Mitch Daniels.

Another famously mangled and misused fake Franklin quote goes something like this: "Those who would sacrifice liberty for security deserve neither." Of course, Franklin in the 1750's--in the context of the French and Indian war raging in western Pennsylvania, and the confrontation of pacifist Quakers with the those who wanted to fight the war, including Franklin, in the state legislature--did say this when he wrote to the Governor: "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." As Michelle Malkin points out here, the differences in the quotes are critically important to getting at the contextual accuracy of Franklin's meaning. If we place the quote in the actual paragraph it occurs in--a message to the Governor on behalf of the Pennsylvania Legislature concerning the failure to properly arm and supply the frontiersmen doing the fighting and being chased eastward, the meaning becomes fairly plain:

"In fine, we have the most sensible Concern for the poor distressed Inhabitants of the Frontiers. We have taken every Step in our Power, consistent with the just Rights of the Freemen of Pennsylvania, for their Relief, and we have Reason to believe, that in the Midst of their Distresses they themselves do not wish us to go farther. Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. Such as were inclined to defend themselves, but unable to purchase Arms and Ammunition, have, as we are informed, been supplied with both, as far as Arms could be procured, out of Monies given by the last Assembly for the King’s Use; and the large Supply of Money offered by this Bill, might enable the Governor to do every Thing else that should be judged necessary for their farther Security, if he shall think fit to accept it."

To see the entire message, the Papers of Benjamin Franklin are online (like most other primary documents collections from such prolifically famous statesmen of this time period) here (the reply is from November 11, 1755).

From the uncertain and the mangled, there are the outright frauds. For instance, a very popular Franklin fake goes like this: "The Constitution only gives people the right to pursue happiness. You have to catch it yourself." One need not be a historical expert to smell this as a fake immediately. First of all--the Founders did not believe that rights were "given" by documents; rather, rights existed a priori as facts of man's nature and the nature of the universe. Hence, their unalienability. Secondly, Franklin was present for the drafting of the Declaration of Independence--playing a crucial role on the committee as a lead editor of Jefferson's original draft--where the phrase "pursuit of happiness" occurs and not, as the "quote" seems to suggest, the U.S. Constitution. Franklin was also present, of course, for the drafting and debate of the U.S. Constitution as was already discussed above. The Constitution does not recapitulate that phrase; in fact, the Constitution as presented from Philadelphia contained no Bill of Rights at all. Furthermore, Franklin died before the amendments that became known as the Bill of Rights were ratified and became a part of the Constitution and, of course, none of the proposed amendments recapitulated the phrase "pursuit of happiness." So, on the face of it, this quote is highly suspicious. On top of that, like most fake quotes, it has no attribution that would allow a curious person to look it up and find out more of its context for themselves. This is the hallmark of every two-bit fake on the internet--but just having attribution guarantees nothing. Fortunately for those curious about this particular "quote," the blog of The Economist has already debunked it, along with a popular "quote" of Thomas Jefferson (“The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite").

Aside from the above, Jefferson is mistakenly "quoted" all the time for every conceivable end--religious and atheist, right and left. I have recently debunked two lousy fakes passed along as real wisdom of the sage of Monticello from Facebook friends of diametrically opposing worldviews. From what I would kindly describe as a leftist friend came this gem "from" Jefferson:

"I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around [these banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered. The issuing power [of currency] should be taken from the banks and restored to the people, to whom it properly belongs."

This is a hodgepodge combination of fake and out of context "quotes." According to the team working out of Monticello--which has been diligent in hunting down these fake "quotes" from Jefferson--Jefferson said some things partially similar to this in private letters and some things not at all. As you can see from their excellent discussion of the sourcing for this "quote," most of it is simply imaginary--the glaring giveaway is the sudden appearance of the words "inflation" and "deflation." Neither was used in Jefferson's day. Also, words like that—so seemingly prophetic of today’s problems—are classic signs, I have found, of the Ron Paul, Lyndon LaRouche, anti-banking conspiratorial fringe. Those working in that backwater are some of the worst offenders when it comes to creating, and then running through an echo chamber over and over and over again, fake quotes. When I pointed out that this quote was bogus and provided the link to Monticello that explains how and why, the literal response I received from some person I am not familiar with was: "fake or not... it is the truth..." A stunningly honest admission that the entire hunt for a confirming authority quotation is all a bit of a canard for many would-be internet historians.

From a friend much more to the right, came this, perhaps the most highly exposed fake quote around right now; from the alleged lips of Thomas Jefferson: "When the government fears the people, there is liberty. When the people fear the government, there is tyranny." Again, the historians at Monticello have already taken care of this quote and have been nice enough to announce their work to the world, but people evidently cannot be troubled to look into the authenticity of quotes. Judge Andrew Napolitano, a sadly misinformed blowhard from the Fox Business Channel and the Fox News Channel (where he incredibly serves as the "Senior Judicial Analyst"), uses this quote like it's going out of style both on TV and in private speaking engagements. For instance, see this one (where other fake quotes abound) and skip to the 29:40 mark for this particular quote delivered as the stirring conclusion to a speech otherwise laced with deluded fantasy.

It is remarkable how much people 1) wish to wrap their ideas and opinions up in the mantle of some historical authority and 2) how little time they spend in actually learning about the history involved and reading the actual primary sources that would allow them to do so with some manner of skill. It is not as if the sources are locked away and hidden from people. Aside from manuscripts that are held in institutions--academic or otherwise--that have some manner of procedure in place for anyone to come and have a look at the collections, a great deal is available digitally (and free) at the Library of Congress, Google Books, and any number of University or research institution affiliated websites--like this one or this one. Beyond that, public and local college and University libraries have most or all of the published papers of figures like Franklin, Hamilton, Washington, Jefferson, Madison, Lincoln etc. (and in the links you can see all their papers digitized from the Library of Congress) and a great number of primary sources are published for public consumption from presses like the Library of America and the Liberty Fund. Spreading false quotations unknowingly is an inexcusable error that should not occur--it's simply too easy to verify a quote for it to happen. But, since it seems to be a recurring issue, below are my easy to follow guidelines for evaluating quotes that you don't know for sure are authentic.

1) If the quote seems very prophetic of specific modern concretes, then be wary.

2) If the quote has no attribution, be very wary.

3) If the attribution is impossible for you to hunt down, DO NOT repost until you have done more work.

4) If you quote the quotation into a Google search and all that pops up are fringe and wacko websites peddling conspiracy theories—reposting the alleged quote ad nauseum—you almost certainly have a fake.

5) Only repost a quotation when you know for sure that it is authentic and you are familiar enough with the context in which the quote came about to explain why, where and when it was either said or written.

a. Do not be afraid to demand such information from those who post or repost unattributed quotations.

Finally, you do not need a famous person to validate your arguments for anything. It can be a nice touch, it can add a flourish to your conclusion or lend brilliant phraseology to your point, but at the end of the day—you and George Washington can both be wrong for the same reasons. But if you wish to quote someone, please be mindful of context and accuracy—because there is no easier way to upend any argument that relies on authoritative quotations than to point out that either 1) it’s a fake, or 2) you’ve horribly misrepresented the meaning of the quote in question.

2011-11-04T09:34:00.000-07:00

Fake Internet Quotes and Funny T-Shirts

There are numerous fake internet quotes attributed to various founding fathers. The two biggest victims seem to be Benjamin Franklin and Thomas Jefferson. I will have a thorough post on this shortly. In the mean time, check out these awesome t-shirts!

http://www.cafepress.com/cp/customize/product2.aspx?number=589897617

2011-10-30T13:11:00.000-07:00

Calling the Media—When is Ron Paul Going to Have to Answer?

By Alexander Marriott

Among the contenders for the Republican Party’s presidential nomination polling in or near the double digits only one sticks out as a true ugly duckling: Texas Congressman, and former OB/GYN, Ron Paul. Often pointed to as the “libertarian” candidate, Dr. Paul quixotically (heroically to his admirers) zeroes in on monetary policy, the existence of the Federal Reserve, and the “business cycle,” while his opponents debate the merits of their gimmicky tax/economy/jobs plans. But his most jarringly discordant notes come in foreign policy—particularly concerning the Islamic Republic of Iran.

Dr. Paul raised eyebrows during a GOP Presidential debate in August when he shrugged off the notion that Iran might get a nuclear weapon, comparing the theocratic regime to the Communist regimes of the old Soviet Union and the People’s Republic of China. He followed this bravura performance with an appearance on Fox News where he blandly acceded to the notion that Israel had nothing to fear from an Iranian nuke because: “The Iranians don’t have a tradition of sending troops and invading countries 6000 miles from their shore and occupying another country. [As] a matter of fact, they’re pretty respectful of their borders....” Further, he has advocated a "friendship" with a country that the State Department (see overview on pg. 150-151) and every terror expert in the world has indicted for numerous attacks on American interests and allies around the world--calling reports of Iranian nuclear ambitions "blown out of proportion."

The world has waited with baited breath after the revelation of the Iranian plot to assassinate the Saudi Ambassador to the United States in Washington, D.C., for Congressman Paul to revise his, some might say naive, position on the threat posed to Israel and the United States by a terrorist sponsoring Islamic theocracy. Instead, Paul told CNN’s Wolf Blitzer: “I think it’s mostly war propaganda. They’ve been itching to go to war against Iran for a long, long time. This is exactly what they did leading up to the war in Iraq, and the danger was not there.”

Why is this important? Isn’t this all simply the classic expression of libertarian non-intervention? Perhaps. But Ron Paul has a history, curious associations, and a veritable army of “interesting” supporters. Without coming right out in a poor imitation of Emile Zola, how exactly does a major presidential candidate with so much anti-Semitic baggage—past and present—glide unscathed from one media interview and debate to another? Paul is the only major candidate sporting a foreign policy which guarantees—if he is mistaken about Iran—the destruction of seven million Jews. A devastating exposé is potentially right there. Where is the media?

First, the history. In 2008, when Paul’s bid for the GOP nomination really garnered nation-wide support and attention, The New Republic and Reason Magazine covered a disturbing story about Congressman Paul’s writings from the 1980’s and early 1990s that contained a host of racist remarks and played into a number of insidious conspiracy theories. Congressman Paul’s excuses for these newsletters that were sent out under his name was that they had been ghost-written by some unknown aid—most likely the loathsome Lew Rockwell. The story did not progress much from there. Paul went on to rail against the Fed and Lew Rockwell continued to give him advice. (See also David Harsanyi's more recent piece in Reason Magazine.) Jeffrey Lord, at the American Spectator, has been among those at the forefront here, and here, in exposing the serpentine paths of Paul's anti-semitic connections. They are in-depth analyses of the beliefs of Dr. Paul and his associates and I cannot recommend them enough to people looking for more information about these issues.

Everyone has surely noticed Ron Paul’s passionate obsession with the Federal Reserve. The innocent interpretation of this is that Paul is a true libertarian and opposes central banking, fiat money, and government controlled interest rates. This is all probably true. But there is something else going on with Paul’s attack on the Fed that seems to go unnoticed. Delve into an internet message board of Paul supporters and you cannot fail to see references to “New World Order” and people bemoaning international financiers and bankers. Eventually, you will be directed to a book by G. Edward Griffin, The Creature from Jekyll Island (5th ed., 2010).

Those who used to be glued to Glenn Beck’s pseudo-history show on Fox News might remember that during an episode in March 2011, Beck gave this book and its author central prominence. Why does this matter? Aside from having no pretensions to being a historian, and aside from setting up a publisher to print his own book (thus avoiding pesky things like peer review), Mr. Griffin’s opus has chapters entitled “Building the New World Order,” “The Rothschild Formula,” and “The Creature Swallows Congress.” And, when you get to the back cover, what do you find just above the blurb of famed financial historian Willie Nelson (yes, THAT Willie Nelson)? Why, none other than Ron Paul and this outlandish praise: “A superb analysis deserving serious attention by all Americans. Be prepared for one heck of a journey through time and mind.” Other acknowledged experts in the field include a man from "New Jersy" and world-renowned banking expert, "Stan." On the right is a picture of the back cover of the most recent edition of the book.

Forget the goofy chapter titles and bizarre lingo (“the Mandrake mechanism,” for instance), what is the trouble with this book and author? Take the author first. Griffin is also “famous” for propagating a theory of cancer (he’s also not an M.D., in fact his credentials are a Bachelors in Speech and Communication along with the exalted rank of certified financial planner) as a metabolic disorder. Why is it not cured? You guessed it, a cabal-run conspiracy of medical professionals and drug companies does not want to see their livelihood--cancer--eradicated by a cheap cure. If you want to review Griffin's healthcare bookstore, you can also learn about the dangers and ineffectiveness of vaccinations. For a scientifically peer-reviewed overview of why Mr. Griffin, an untrained non-specialist, is wrong about this, see Dr. Victor Herbert's rebuttal in the May, 1979 American Journal of Clinical Nutrition.

When he’s not engaged in that quackery, he’s off searching for the resting place of Noah’s Ark. Yes, that Noah’s Ark. Oh yes, he also once upon a time wrote speeches for George Wallace’s vice-presidential nominee. Yes, that George Wallace. Don’t worry though, according to Griffin (while all of the material Griffin puts in this omnibus post is interesting, scroll down to "GRIFFIN "EXPOSED" AS SPEECHWRITER FOR GENERAL LEMAY!"), Wallace was merely “widely perceived as a Southern racist.” That’s right; it was everyone else’s fault for observing reality. To have a look at Griffin's conspiracy-pandering immediately after his failure to elect George Wallace to the Presidency, see this (particularly from minute eight onwards).

As for the book. No undergraduate history major would ever get away with writing one page of Griffin’s tome--primary sources are virtually non-existent and secondary sources are woefully outdated. This is tantamount to a criminal act against the practice of history given the nature of the narrative accusations contained in the book. He is constantly discussing things he has no personal knowledge of without any references. His bibliography looks impressive—but it’s missing seemingly very important books given his topic. He writes about the Rothschilds but ignores Niall Ferguson’s two volume biography of the family. (To see classical liberal historian Niall Ferguson discuss this and many other issues, watch this interview.) He does, however, rely on noted anti-Semitic conspiracy mongers like Eustace Mullins (see also how Paul's supporters lionize Mullins, here). It’s right there in the black ink of his own press.

The book contains all the modern, quite obviously racist canards, of the "paleoconservative" revisionism that is the raison d'etre of organizations like the Ludwig von Mises Institute and pseudo-scholars (and radically pro-Confederate racist revisionists) like Thomas J. DiLorenzo (see an interview with him here, and the Southern Poverty Law Center's description of modern Neo-Confederate intellectuals here). Slavery is not the cause of the Civil War, says Griffin, but the "legal plunder" of Northern industrialists against southern agrarians who desperately sought to invest their capital in more efficient resources than inefficient expensive slaves was the true cause. Despite the fact that he cannot even point to an old secondary source that contains such a reductio ad absurdum distortion of historical reality (and they certainly exist, see one of the few secondary sources he does use here), he also willfully ignores modern scholarship which is overwhelmingly based on the writings--public and private--of Southerners themselves to indict their vicious and callous and open pro-slavery motivations for rebellion. (For more on this, check out the Library of America series on Civil War writings from those who lived through the war.) Ron Paul has publicly endorsed these views as well, and I addressed them in very condemnatory language at the time.

Now, the Federal Reserve is almost assuredly engaged in foolish policies while performing an inherently illegitimate mission—many famous economists and political philosophers have held that position. The actual historian of the Fed, Carnegie Mellon economist Allan H. Meltzer, is often highly critical of the role the Fed plays in the economy. It is possible to be a critic of the Fed without it becoming a crazed, paranoid, obsession with Rothschild financier conspiracies hatched on island resorts.

And this brings us back to the troubling pattern of Dr. Paul’s history, friends, wild-eyed fans, and policies. As President, Paul would have to wait for Congress to audit/abolish the Federal Reserve, but he could immediately commit the country publicly to doing nothing about Iran. Can we count on a man who thinks theocratic, jihadist, holocaust denying Iran is no different than Cuba to defend American interests and allies? What if he did write his own newsletters, knows his advisors are anti-Semitic, nods and winks at his many Neo-Nazi supporters and knowingly endorses conspiracy-ridden screeds that pin all manner of crimes on a family of Jewish aristocrats and financiers? These are questions that need answering. But someone needs to ask him first.

(Mark Levin did a great segment on this very issue in August 2011. Do your own research!)

2011-07-16T16:44:00.000-07:00

Congress--not the President--makes law; a constitutional solution to the legislative impasse on the debt ceiling

Is it just me, or does this entire debt ceiling discussion business seem odd and bizarre? The President has stepped into a legislative conflict between the House of Representatives (240 Republicans to 192 Democrats, 3 empty seats) and the Senate (51 Democrats, 47 Republicans and 2 liberal Independents). The President, as far as law-making goes, can merely propose ideas and has a limited veto power. Given the statements of his Treasury Secretary, and his own statements, it seems obvious to me that if any bill makes it to his desk--and by definition any such bill has to have at least some bipartisan support--he will have absolutely no choice but to sign it.

Now, the trick, as far as I can tell, is gaining enough Democratic Senators for a bill out of the House to make an up-or-down vote certain to pass. Would Harry Reid, at that point, actually allow a filibuster to prevent a bill that solved the current impasse from coming to a vote on the floor? I don't think that's credible--he'll be seen, rightly, as blocking it purely out of partisan motives and a default will be placed purely on his shoulders. Which Democratic Senators might be induced to join some small package (probably between $2.5 and $3 trillion of debt limit increase paired with some manner of spending cuts) deal? Below is a cursory list of the people I think are most vulnerable to political pressures in their home states to get on board a solution which the President, at the end of the day, could never veto without taking full ownership of blame--which is his anyway.

This list includes only the 13 most obvious targets, many of whom face tough re-election battles where sticking it to the President will help them substantially next year when they try to make the case in their right-leaning states for being sent back to Washington. If all the Republicans held and all of these Senators joined them, it would, of course, make filibuster impossible, but if even half of this list could be brought on board, I'm convinced that the Senate would have an up-or-down vote and the President would have absolutely nothing to do but sign the bill or look like a petulant fraud.

Mark Begich - Alaska
Mark Pryor - Arkansas
Mark Udall - Colorado
Michael Bennet - Colorado
Joe Lieberman - Connecticut
Bill Nelson - Florida
Mary Landrieu - Louisiana
Claire McCaskill - Missouri
John Tester - Montana
Kay Hagan - North Carolina
Tim Johnson - South Dakota
Jim Webb - Virginia
Joe Manchin - West Virginia

2011-06-09T22:37:00.000-07:00

Who's Afraid of Alexander Hamilton?

So it seems to be a recurring issue in discussions about the founders that Alexander Hamilton is basically the odd ball who was working against the liberty and freedom so cherished by Jefferson and Madison--and later Adams when he reentered the Republican fold. Of course, one needs to always be mindful of the partisan political situation of the 1790s that pitched Hamilton and George Washington himself against Jefferson and his friends. Adams became disliked by both Hamilton's allies and Jefferson's for a specific series of reasons relating to the abortive war with France in 1798-1799. But all of these men were working to address serious issues relating to the fragility and survival of the republic as it came perilously close to war during the 25 year period surrounding the French Revolution and the rise of Napoleon Bonaparte. Jefferson, not Hamilton (or Washington for that matter), failed to separate himself from the French Revolution when it became obvious to many that that struggle no longer had anything to do with liberty. That disagreement fundamentally colored much of the interpretive invective both figures and their followers hurled at one another. Hamilton was a British sympathizer in the European war (or against the French) and thus a secret monarchist while Jefferson was pro-French and therefore an unstable Jacobin demagogue. When Hamilton was killed in a duel in 1804 (Washington, his great defender, died in 1799) there was no one of his stature left to either defend his ideas and actions or protect his legacy. Adams, Jefferson, Madison, and later Andrew Jackson were content to let Hamilton remain a misguided and dangerous bogeyman rather than critically reexamine their own actions later on to admit at least to themselves where Hamilton may have the better arguments. It's absurd to exalt Jefferson over Hamilton in terms of legacy to the republic (his only post of real prominence was as Washington's Tresury Secretary from 1789-January 31, 1795) when it was President Jefferson who embraced and established a number of terrible precedents in his second term to enforce his misguided policy of embargoing all American commerce (thus requiring the Federal government to rigorously enforce the policy on the borders, which led to wholesale violations of the fourth amendment in the effort to stymie illicit trade). Even Jefferson's Treasury Secretary, Albert Gallatin--the man in charge of enforcement--admitted the policies required to make the embargo work were utterly arbitrary and worse than war if they lasted for very long.

Hamilton, a veteran of the Revolutionary War who fought at the battle of Yorktown as well as serving for several years in the important post of aide-de-camp to General Washington, never had to justify his place as an American in his own day. [He also served in the Continental Congress after the war, had written an influential pamphlet series in the very beginning of the struggle before ditching Columbia for the Continental Army, and was, of course, extremely influential and important in the ratification fight in New York and nationally] Certainly Jefferson would never publicly have questioned Hamilton's motives for fear of having his own Revolutionary experience--being chased away from Richmond as Governor by the British as they captured and ransacked the capital of the Virginia--laid at his feet (for a period he was openly condemned as a coward). Plus, unlike Hamilton, Jefferson never openly went about doing anything, he always worked behind the scenes even to the point--in Washington's opinion--of being blatantly duplicitous. Hamilton, on the other hand, never shut his mouth and was unafraid of saying unpopular things to the people—to the point of being hit in the head with a rock during a particularly close and bitter election in New York City. All of these men had serious issues and made serious mistakes, but trying to pin the failures of the founding on one man alone or even predominantly is silly, absurd, and supremely unfair. Particularly to such a man as Alexander Hamilton.

If you think the mere fact that Jefferson came to hate and despise Hamilton so much is, ipso facto, all the evidence one needs, consider this; Franklin Delano Roosevelt hated Alexander Hamilton--thought he was the original heartless capitalist monster--and loved Thomas Jefferson so much that he built him a huge monument. If simply having worthy admirers makes one ok later on, consider that when Jefferson finally forced Washington to choose between himself and Hamilton, Washington simply let it be known that Jefferson had made that decision for them both already.

Below are what I consider to be the best of the best of Hamilton scholarship that make an irrefutable case for the man's values, courage, brilliance and undying commitment to liberty and freedom. As well there are links to his writings which are almost uniformly excellent. Was he wrong sometimes, occasionally quite disastrously? Absolutely. But only Washington ever came very close to getting most things correct--major things anyway--and yet his errors are also large and glaring. Hamilton, like all of them, was a flawed hero, but a hero all the same.

But whatever else you read, avoid "politically incorrect" guides to American history and such hack job "scholarship" being offered by people like Thomas J. DiLorenzo. Those sources are worse than useless as they are fundamentally dishonest about context, evidence, and any number of other things.

Gerald Stourzsh
http://www.amazon.com/Alexander-Hamilton-Idea-Republican-Government/dp/0804707243/ref=sr_1_1?ie=UTF8&qid=1307681503&sr=8-1

Ron Chernow
http://www.amazon.com/Alexander-Hamilton-Ron-Chernow/dp/0143034758/ref=sr_1_1?ie=UTF8&qid=1307681145&sr=8-1

Forrest McDonald
http://www.amazon.com/Alexander-Hamilton-Biography-Forrest-Mcdonald/dp/039330048X/ref=sr_1_10?ie=UTF8&qid=1307681145&sr=8-10

John Lamberton Harper
http://www.amazon.com/American-Machiavelli-Alexander-Hamilton-Origins/dp/0521708745/ref=sr_1_12?ie=UTF8&qid=1307681145&sr=8-12

Karl-Friedrich Walling
http://www.amazon.com/Republican-Empire-Alexander-Government-University/dp/0700609709/ref=sr_1_1?ie=UTF8&qid=1307681471&sr=8-1

Alexander Hamilton: Writings
http://www.amazon.com/Alexander-Hamilton-Writings-Library-America/dp/1931082049/ref=sr_1_3?ie=UTF8&qid=1307681145&sr=8-3

The Federalist Papers
http://www.amazon.com/Federalist-Papers-Alexander-Hamilton/dp/1936594404/ref=sr_1_1?ie=UTF8&qid=1307681531&sr=8-1

2011-03-22T11:37:00.000-07:00

Historians as Partisans, Partisans as Historians

"Scott Walker is not Joe McCarthy. Their political convictions and the two moments in history are quite different. But there is something about the style of the two men — their aggressiveness, their self-certainty, their seeming indifference to contrary views — that may help explain the extreme partisan reactions they triggered." - Historian William Cronon, "Wisconsin's Radical Break"

Having read Cronon's historical works, I cannot say I'm surprised by his criticism of things (terrible things) like "self-certainty." He also slips in vague and undefined concepts like "good government" that are allegedly imperiled by the effort to revoke absurd union privileges--not rights--and try to balance his state's budget. Go figure.

But perhaps most unacceptable for a historian, Cronon decides this situation can be better understood by historicizing the issues and then fails to deliver. Now he may be correct in attempting to historicize the issues (though he does not do so from the vantage point of intellectual history and is, thus, bound to fail), but when he executes it, he only historicizes it back to the era of statist Progressives without pointing out what those people were all about.

In Cronon's rehash, La Follete and the rest of the Wisconsin progressives were just do-gooders looking out for the little guy against big meanies in industry. They won alleged rights for Unions and others that are something to be proud of and now new big bad meanie Scott Walker comes along and undoes a century of "PROGRESS." Cronon is entitled to his philosophy of anti-industrialism (read "Nature's Metropolis") and he's entitled to use his knowledge of history to advance that philosophy all day (just like radical Marxist historian Sean Wilentz), but he should be more upfront and honest about it.

He should also learn to define sloppy terms like "good government." Who objects to good government? The rub is how one defines the role of government and thus evaluating what sorts of government actions are good and which are not. Cronon's progressive heroes were statists, eugenicists, and demagogues. And the Unions they secured "rights" for were notoriously racist and corrupt labor cartels.

But you'd scarcely know any of that living in the William Cronon fantasy land of revisionism--since at the time Progressives were in the minority and were derided as the dangerous demagogues that they were--except of course in what was at the time a bizarro state called Wisconsin.

The article is good for laughs though, like this particularly hyperbolic and dishonest rant:

"Mr. Walker’s conduct has provoked a level of divisiveness and bitter partisan hostility the likes of which have not been seen in this state since at least the Vietnam War. Many citizens are furious at their governor and his party, not only because of profound policy differences, but because these particular Republicans have exercised power in abusively nontransparent ways that represent such a radical break from the state’s tradition of open government.

"Perhaps that is why — as a centrist and a lifelong independent — I have found myself returning over the past few weeks to the question posed by the lawyer Joseph N. Welch during the hearings that finally helped bring down another Wisconsin Republican, Joe McCarthy, in 1954: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”"

William Cronon is a lot of things (at times even a decent historian)--but he could only be a centrist in a way far left of center place like Madison, Wisconsin. William Cronon hesitates at the Rubicon of nationalizing industry and thus, in Madison, he's a wobbly centrist. As for honorable Wisconsin politics--give me a break. The state of Wisconsin has created the most corrupt union-dominated class of state sycophants I have seen in a long time. Creating mobs at the drop of a hat to threaten a legislature and governor with assassination over modifying what are unheard of privileges that no one deserves to have granted to them through the force of the state. Has Mr. Cronon no decency to understand the other side's argument at all? No, of course not. He decries partisanship because it means challenging entrenched interests and lazy assumptions--all of which Wisconsin is drowning in at the moment.

Besides, where is the accountability and "open government" of the Democratic State Senators? Cronon completely ignores (probably as some sign of his independence and centrism) the Democrats of the Wisconsin Senate, who, instead of rallying the public and delaying motions on the floor of the legislature (as is their job), fled to another state and did the opposite of their job. They did this for no other reason than to avoid a vote they knew they would lose, indeed to prevent a vote from occurring at all (so much for all the superficial talk of "process.") It was a shameless attempt to bring the government to a halt and prevent the lawful will of a fairly elected majority to do its job. Had the Republicans done that in years past when in the minority one can scarcely imagine the outrage and calls for decency that would have poured in upon them from the likes of William Cronon. But I'm sure it would have been as laughably absurd as his current faux outrage.

2011-03-19T23:00:00.000-07:00

The Selfish Case for Libyan Intervention

I never intended to write a serious exposition in support of Libyan intervention for two principal reasons. 1) Since my audience is largely Objectivist oriented, I imagined it would be unnecessary as attacking a weakened Moammar al-Gadhafi appears to me an obvious proposition and 2) recent public opinion polls suggest that the American people have taken the default position on the idea—that is, to do nothing. In the matter of the former, I have been surprised to find so much strident opposition—to the point of refusing to discuss the matter—to a Libyan campaign among Objectivists and other rational people concerned about defending the republic in the current war (I do not count Libertarian types like Harry Browne and Ron Paul as among the rational). In the case of the latter, this was to be expected by the failure of President Obama to do any preparation work for the coming campaign until yesterday when he made the case in the most abject and selfless terms humanly possible: “But we cannot stand idly by when a tyrant tells his people that there will be no mercy, and his forces step up their assaults on cities like Benghazi and Misurata, where innocent men and women face brutality and death at the hands of their own government”—not the best way to embolden an already weary people to arms. It is also a very dangerous call to arms because Bahrain, China, Saudi Arabia and countless other states are currently doing the same thing, why are we not attacking them as well?

It is not my job to fund Mr. Obama’s deficiencies—even if it were, I have neither the time nor patience for such a Sisyphean crusade. But, there is a very simple and relevant case for attacking and helping to destroy the regime of Gadhafi and bringing that tyrant murderer to some manner of justice either in a court or on the battlefield. In the course of this case I will deal with what I think are the best arguments that can be made against the wisdom of getting involved in this Libyan rebellion. They are: 1) President Obama, through his words and actions over the past two years—reinforced by yesterday’s speech—cannot be trusted to conduct such a campaign in anything approaching the proper manner and will simply waste immense amounts of American blood and treasure in a selfless war to achieve nothing; 2) the United States has no rationally self-interested reason to bomb Gadhafi’s armed forces or to attack his air force—the Libyan rebels are not our allies and this is their war; and 3) if we intervene, kill Gadhafi and then the rebels create an Islamist regime in place of the Colonel’s old socialistic kleptocracy, we will actually be worse off than before we started—not to mention poorer in blood and treasure. These are all legitimate objections one might and can raise to the notion of intervening militarily in Libya. They all, however, lose sight of our very real national interests at stake in the demise of Gadhafi: for our murdered countrymen, for ourselves, and for our interests in the broader war which we still find ourselves fighting almost a decade after the fatal attacks of 11 September 2001.

Let me start by saying that as far as the Libyan Rebels are concerned, they are a means to an end—not, as alleged human rights advocates pushing for war would have it, the end in itself. The United States ought not to care or even want to attempt to steer the Libyan rebellion in any direction other than by simply maintaining that if it ends up being “Gadhafi: Part Two” or something even worse, we will not take it lightly. No regime established by the Libyan people that is just as bad or worse than the one Gadhafi currently runs will have any extra legitimacy—it will be just as illegitimate and just as open to invasion and destruction as the country is right now under the man President Reagan referred to as a “mad dog.”

Our war with a group of ideologically committed fanatics goes back at least as far as 1979, when a revolution occurred in Iran that resulted in the ascension of the modern world’s first fundamentalist Islamic state. That state, run by a council of clerics headed by supreme leader Ayatollah Khomeini, inaugurated a war against the west directed primarily at the western world’s greatest ally in the Middle East—Israel. The United States—avowedly called “the Great Satan” by the regime in Qom (the city of Iran where the supreme leader governs)—was also a target of Iranian state-sponsored terrorism throughout the region whenever it had the means and opportunity.

The decade of the 1980’s witnessed a proliferation of Arab enemies of the United States—largely supplied by the Soviet Union (the exception here is Afghanistan where supplies came largely from the United States and other Islamic countries). One such enemy was the dictator of Libya—Moammar al-Gadhafi. Gadhafi came to power in a military coup in 1969, instituting what was at the time a fashionable Arab national socialist regime like that of Nasser in Egypt and, later, the Ba’ath regime of Saddam Hussein in Iraq. As such, there is a mistaken propensity among Western commentators to view Gadhafi (also Hussein) as ultimately secular forces in the Middle East. This is a mistake that both men have been all too happy to take advantage of in more recent years when they used this misconception to claim support from the West as a bulwark against the Islamic fundamentalists they allegedly held at bay. Hussein did this in his war against Khomeini’s Iran, and Gadhafi has taken this pose in the decades after he ceased trying to direct terrorist efforts outside of the Israeli-Palestinian conflict.

Both Gadhafi and Hussein, while not being ideologically driven to worldwide jihad against the west, have fomented terrorism against the state of Israel quite openly during their long reigns. Gadhafi has been a very consistent supporter (mostly through immense sums of money, but also through weapons training) of organizations like Palestinian Islamic Jihad, which is avowedly Islamist in its intentions and goals. Quite simply it supports the destruction of the state of Israel (a goal which Gadhafi has glossed over by claiming it simply means the creation of one new inclusive state in the region with both Jews and Palestinians living together named something like “Isratine”) and the creation of a new Palestinian Islamic State. Gadhafi is so committed to this goal that when the Palestinian Liberation Organization began the peace process with Israel, he expelled that group and all Palestinians from Libya (something on the order of 30,000 people) as a sign of his disapproval. Gadhafi is a fascist, yes. But Arab fascism is not atheistic, or even secular. No more than the hedonist House of Saud is a force for fringe philosophies of the ancient Greeks.

The troubles the United States had directly with Gadhafi, and which he has never been brought to any sort of justice for, began in the early 1980s when rumors of Libyan assassination plotting reached the State Department and President Reagan. The rumors were credible enough that Reagan expelled the Libyan mission from the United States and cut off all diplomatic ties with Gadhafi. As the tensions rose, Gadhafi decided to encourage truly radical terrorists like Abu Nidal (Osama Bin Laden’s forerunner) to take dramatic actions against non-Israeli Western targets. Another group which intelligence agencies believe was bankrolled by the Libyan dictator is the Palestinian Liberation Front, which hijacked the cruise ship Achille Lauro in October 1985. An American (a handicapped Jewish man in a wheelchair) Leon Klinghoffer was killed during the hijacking.

Libyan terrorism struck the west again that year when, in December, the airports of Rome and Vienna were bombed. Twenty people died in those attacks, five of whom were Americans. Again, in April 1986, Libyan agents blew up a West Berlin disco which was widely known to be the haunt of U.S. servicemen—two U.S. servicemen were killed as well as a Turkish civilian while 230 people were injured including fifty U.S. servicemen. Libyan cables intercepted in the aftermath led to a limited bombing reprisal against Tripoli on 15 April 1986 at the order of President Reagan. No other measures were taken against the Libyans for the bombings (the Germans later prosecuted the Libyan agents responsible for planning and carrying the bombings out when secret files were discovered post unification).

Most famously, and despicably, Gadhafi retaliated for the April bombing of Tripoli by ordering the destruction of a passenger aircraft known to be full of Americans, Pam Am 103 out of London en route to New York City on 21 December 1988. When the plane exploded over Lockerbie, Scotland, 259 people died (189 Americans) and eleven more were killed on the ground by the falling debris. Gadhafi formally accepted responsibility for the bombing in 2003 as part of an unprecedented deal that involved payoffs to victims families, the lifting of international sanctions and the restoration of diplomatic recognition. This does not, in my opinion, constitute anything approaching justice for the 197 Americans killed on orders from Gadhafi up through 1988. But the story did not end there as the Libyans blew up yet another airplane over Niger on 19 September 1989 which killed 170 people including seven Americans, the wife of the American ambassador to Chad among them. That’s 203 Americans (464 people altogether) known to have been deliberately murdered either on the direct orders of Gadhafi, his regime underlings or through Libyan funding of international terrorist organizations. It does not include the incalculable number of Israelis killed with the aid of millions of dollars from Gadhafi. Until the attacks of 11 September 2001, only Iran (mostly through similar surrogate networks in Palestinian terrorist groups and through Syria) surpassed Gadhafi as a murderer of Americans.

Gadhafi’s “sudden” quiet in the 1990s owes more to the collapse of his protector and weapons dealer—the Soviet Union—than it did to any fear of the Americans. What had he to be fearful of? The occasional bombing? Economic sanctions? He was left unscathed after rather brazenly attacking the most powerful country on the planet in numerous ways and murdering hundreds of its citizens abroad. He was the Bin Laden of the 1980s—an Islamic crackpot (though this one had international recognition as a head of state) who rather openly killed westerners and got away with it for all intents and purposes. There could be few better examples than Libya and Iran for Bin Laden to have observed before launching his own terrorist war on the United States in the 1990s.

What message does the republic send when it not only refuses to punish attacks on its civilians abroad, but, encourages murderers to wait long enough and steal enough money to buy absolution and have the slate wiped clean at the end of the day? There have always been some impediments to taking out the Libyan dictator. He had Soviet backing for many years, he seemed to have a firm grip on his puny country and a loyal (read bought) military machine that would be difficult to eliminate. Also, other missions got in the way after 1988—Iraq, Somalia, Bosnia, Kosovo—and by the time you get to that horrific day in September, twelve years had elapsed. But does that make any difference? That’s twelve years of proving you can get away with it. If one goes back to the opening salvo in 1985, it’s sixteen years. Only Iran could claim a longer reprieve from punitive justice, twenty-two years.

Every government with any pretension to international respect, domestic loyalty and legitimacy must protect the lives of its citizens from foreign insult and attack. This has been the cornerstone of the government’s raison d’être from the very beginning. All governments accept this as a sine qua non of civilized relations with one another. Insult and abuse of foreign citizens has long been considered—and has been acted upon—as a casus belli. Our republic is not only not immune to this aspect of government, it is more obligated under it than most governments because our citizens are the government. Each individual is invested with that portion of the nation’s sovereignty that he can rightly command without impugning the rights of his fellows under our political theory. Thus, when one of our countrymen is assaulted or killed abroad—and for no justifiable reason that puts him in the wrong—we take it extremely seriously and always have.

At the beginning of the wars of the French Revolution in 1793 up through the end of the Napoleonic Wars in 1815, the Royal Navy routinely boarded American merchantmen flying the neutral flag of the republic to reclaim and impress native born Englishmen—scooping up the occasional native born American in the process in addition to naturalized citizens. This resulted in many hundreds of state-sponsored kidnappings over a period of nearly twenty years before the republic declared war on Great Britain. This was only kidnapping, and only several Americans were killed between 1793 and 1812. Many thousands of Americans died in the War of 1812 to vindicate American neutrality and the right of American merchant ships to travel unmolested.

When a special mission was sent to France in 1797 to treat for a resolution of a diplomatic crisis, it was told to pay massive bribes just to meet with the French foreign minister. Knowledge of it led to an undeclared naval war with France. There was intense clamoring for a declaration of war from Congress against France, as well as fear of a French invasion. No one even died in this affair, diplomats were insulted.

Barbary pirates, operating from ports in North Africa stretching from the modern nations of Morocco to Libya, routinely preyed upon American commerce as soon as ships began flying the American flag (thus losing British protection) in the Mediterranean in the 1780s. The policy of the government under the Articles of Confederation and through the first twelve years of the republic under the Constitution was to negotiate treaties of tribute with the local rulers who controlled the pirates. The pirates not only raided American commerce but kidnapped and enslaved American sailors, who then had to be negotiated for by ransom-paying American agents. This sometimes took many years and many thousands of dollars. Most pernicious was that one could never be sure when the local potentate would decide that the Americans were cheating him or that the rates of tribute being gathered by other potentates made him look sufficiently weak that he needed to cut down the American flag and unleash his pirates to begin the process all over again. Washington and Adams would have liked to chastise the pirates of North Africa militarily but that required massive outlays for a navy; tribute was cheaper given the precarious financial position of the government. Washington, addressing this, said he had been endeavoring to “gain time to our country to settle and mature its yet recent institutions, and to progress without interruption, to that degree of strength and consistency, which is necessary to give it, humanly speaking, the command of its own fortunes.”

Thomas Jefferson altered all of that by sending naval squadrons into the Mediterranean Sea to chastise the Beys, Deys, and Sultans of the Northern African states and force treaties out of them respecting the shipping rights of American merchantmen sans tribute. In the case of Tripoli, this proved especially dramatic as the government waged a prolonged naval and land campaign that sought to displace the sitting Bey with his disaffected brother. That process, while succeeding in the eastern portion of the Tripolitan state, failed. But the mere threat of a small ragtag army marching from Alexandria to Eastern Libya convinced the Bey that peace without tribute was better than being killed and displaced, thus vindicating Jefferson’s opinion of nearly two decades that he “should prefer...war [because] 1. Justice is in favor of this opinion. 2. Honor favors it. 3. It will procure us respect in Europe, and respect is a safe-guard to interest. ... 5. I think it least expensive.”

The wars with the pirates resumed when, during the War of 1812, they decided there was no threat of American naval punishment. After the war ended, President Madison dispatched nearly the entire navy (ballooned because of the war) to North Africa where it, once and for all, ended the threat of North African pirates. This was an off and on war of great expense fought by a young republic without any real naval traditions over more than a decade, all merely to protect shipping right of way and to stop the practice of hostage taking and enslavement of American citizens.

I could continue to lay out the history of wars or near wars that the American republic has fought or threatened to fight to maintain the honor, dignity and rights of Americans abroad who were minding their own business or merely trying to perform their jobs without injury and offense to others. The republic never set down a statute of limitations for rightful retaliation and never forgot the wrongs suffered unaddressed at the hands of foreign depots and potentates. The reason for this was simple. They wanted the American flag to stand for something abroad. To be respected, loved, revered, and admired foremost, particularly by all those who wanted liberty and the right to make their own way in the world. But they also wanted that flag to protect its citizens in every corner of the world. They wanted the exclamation “I am a citizen of the United States!” to be a protective shield that would cause all who heard it to immediately think twice about what it would mean to molest such a person.

For much too long in the recent history of our relations with the various states and potentates of the Middle East—first Iran, then Libya, then Syria, then the Palestinians, then Iraq, then Afghanistan—we have taken a cavalier and indefensible position on nearly all affronts to American citizens. Avenging them, protecting them, defending them was not and continues not to be seen as “worth it.” The risks to some useless “peace process” or some alleged alliance were and are seen as too great. Or the aftermath question: what happens after we get rid of so and so? What if it’s worse? These paralyzing and cowardly actions and thoughts are symptomatic of everything that has been and is wrong in our policies and approach to the entire region since 1979.

It cannot be worse. A Libya controlled by Gadhafi is not in any respect that matters better than a Libya controlled by Osama bin Laden. Is it freer? No. Is it less anti-American? No. Is it more respectful of individual life? No. Is it less pro-terrorist? No. Gadhafi’s own take on Bin Laden circa January 2009 was that “Terrorism is a dwarf not a giant. Osama bin laden is a person who can be given a chance to reform.” Having allowed Gadhafi to attack us for a decade and never making a serious effort to get rid of him has only added fuel to the fires of encouragement for anti-western terrorists in the whole region. This rebellion and civil war presents a golden opportunity to rectify all of this at least as concerns Libya. A civil war always has been and always will be a recipe for foreign intervention. Foreign states almost always intervene in civil wars because one (or both) side asks them to do so, or because they wish to conquer a divided country, or because they have some other interest at stake. One side has asked us to intervene and, more importantly, we have some other interest as stake.

The capture, trial, and execution of Gadhafi or his simply being killed due to our efforts and/or assistance is our interest. No one in the world has the right to kill and murder American citizens and get away with it. It does not matter how long ago it was. Our countrymen are not less valuable to us because they have been murdered, nor do we drop our quest for vengeance and justice because years pass before we had an opportunity to have it. What sort of nation are we precisely if we can simply yawn and forget our fellows who were murdered by a tyrant’s caprice and then convince ourselves that his continued survival—particularly when we have the ability to kill him—is not a black stain on the edifice of our republic? We cannot claim to uphold anyone’s rights at home or abroad, to stand for anything at all, to even live under a government worthy of the name if we have become that shallow and contemptuous of our fellow citizens. And to have people who claim to understand reason and self-interest better than most others seriously argue that we have nothing to gain at Gadhafi’s demise—that it is not worth risking American military servicemen—is saddening.

No American serviceman is worth any of our enemies. Even if I were offered a deal by Lucifer himself to cast all of the republic’s foreign enemies into the sun for the cost of one American serviceman I would reject it. We cannot decide on going to war based on that notion for we shall never defend the republic or wage war in its interests ever again. No American life is worth less to American citizens than the lives of our enemies. But the credibility of the republic’s name, justice for murdered countrymen, vengeance against the man who ordered their deaths, making the flag feared and revered to enemies and friends respectively are all legitimate self-interested goals that all Americans should be willing to fight for. They are goals that all past Americans have fought and died for in every corner of the planet. They are notions, concepts and ideas that catapulted the republic from paying embarrassing tributes to pirates to commanding the free world through trade and openness—delivering justice to all and punishing any and all enemies with severe prejudice.

Those among Objectivists who cannot even support a campaign against one of the premiere butchers of their countrymen cannot have any rational expectation that their fellow Americans will ever follow their lead to thwart the aims of the Iranians. Who would take them seriously? When is the last time Ayatollah Khamenei killed an American? What is the magic number of years it takes to suddenly be absolved of murdering an American? Apparently such a number exists in the allegedly moral universe of some, but not in mine.

Gadhafi is not our biggest threat in the world. But no one is arguing that he is, or that we even devote massive resources to killing him. It will not take massive resources. The man has alienated seemingly every nation remotely close to him and all of them want a piece of the final part of his bloody story. We are not called upon to ignore the Iranians in this mission, merely to take care of one piece of long overdue business and tell every enemy of this republic in the world that no matter how long it takes, no matter how well protected they think they are, the United States will find and destroy them eventually. Killing and murdering Americans means, and can only mean, death to the culprits. This is a message worth fighting for.

Finally, as concerns President Obama’s handling of the situation; it’s already abysmal. Declaiming all American objectives that make any sense, making no mention of killing or capturing Gadhafi, the President has draped the entire venture in a shameful and cowardly altruism more appropriate to a nun or medieval flagellant. No American will be or can be inspired by his insipid message. It is the message of the weak, self-effacing, and cowardly West, led by the appeasing United Nations and the weakest and most compromised Western powers—France and Great Britain (Spain and Germany are not to be considered "powers" and the former can hardly be considered "Western" at this point). They have all declaimed any selfish objectives: it’s all for the benefit of the Libyan people they self-righteously intone. This is the worst possible reason to risk American lives, because the question that then needs to be asked to make it legitimate is this: what’s so damned special about the Libyan people? They have asked for our aid, this much is true. Are they secular? Some of them yes, but there are many who are not and, more importantly, there is no indication they plan to set up a secular free state in place of Gadhafi’s dictatorship. Are they likely to respect the rule of law and individual rights (far more important than whatever the hell is meant by “democracy”)? Who the hell knows? If history and common sense are any guide, almost certainly not. So, again, what the hell is so special about the Libyan people that they deserve world-wide intervention? The answer is obviously nothing.

Unfortunately, if the question is consistently framed in that way, then no rational person could, should, or will support attacking Libya. Not because the post-Gadhafi state will be worse—it cannot be—but because we ought not to intervene in civil wars unless we have made an alliance with the side that is clearly morally and politically right and good, or because we have a legitimate grievance and cause for war against one side or the other (or both sides). The latter certainly exists in the Libyan case and thus justifies our going to war, but if no one plans to make that the cause for the war, then it is yet another war for nothing which will eventuate in nothing except sacrificed Americans. This can only further depress the spirits of the American people. I sincerely hope that this oratorical drapery around the mission is simply rhetoric designed to mute criticism from leftist Europeans and worthless Middle Eastern demagogues while a league of nations that despises Gadhafi for their own legitimate reasons does everything possible to assure his ouster. Anything less than that—if Sarkozy, Obama, Cameron, and the rest of them are serious in their self-abnegation—would be tragic.

For more on this crisis, Gadhafi, and how to deal with him, read:

Libya and Terrorism

"Support to Proxies," GlobalSecurity.org, 26 April 2005

"Give bin Laden a chance, Gaddafi tells Obama" Reuters, 22 January 2009

"Gaddafi 'personally gave the order for Lockerbie bombing' and I have PROOF, claims dictator's former justice minister," Gerri Peev, 24 February 2011

"Is Barack Obama Secretly Swiss?" Christopher Hitchens, 25 February 2011

"While the White House Slept," John R. Bolton, 6 March 2011

"American Inaction Favors Qaddafi," Christopher Hitchens, 7 March 2011

"Libya needs action now," John R. Bolton, 14 March 2011

"Don't Let Qaddafi Win," Christopher Hitchens, 14 March 2011

"Against a No-Fly Zone," Stanley Kurtz, 17 March 2011

"Libya, the US, and the Moral Imperative to Intervene," Shadi Hamid, 17 March 2011

"Libya: A good intervention is hard to pull off -- but we should still try," Charles Moore, 18 March 2011

Obama Statement on Libyan Action, 20 March 2011

Statement from Paris Summit on Libya, 20 March 2011

"Qaddafi Must Go," Max Boot, 28 March 2011

2011-02-26T20:37:00.001-08:00

New post on the Blog of the Early Republic about popular misconceptions of Constitutional interpretation and prevalent historical fallacies floating amongst our fellow citizens.

2011-02-24T13:50:00.000-08:00

The Right of Revolution, Assassination, Context, and the Plague of Non-Sequiturs

At the time of the Tucson shootings, I toyed with this essay as a way of saying at least three things: 1) the right of Revolution—and with it a contextually defensible right of assassination—should not be scrapped in the tragedy of the moment which was and is an indefensible act of a deranged murdered; 2) that those who used the situation as an attempt to muzzle their political opponents were engaged in the worst sort of demagoguery and intimidation I have seen in a long time; and 3) that the historical parallel I thought most apropos for the entire unfolding situation—dominated by a proliferation of absurd non-sequitur arguments—was the crisis leading to the outbreak of the American Civil War in 1861.

I did not post it back then for three reasons. The first was the enormous tragedy of the situation made me worry about being misunderstood as being somehow offering mild apology for Mr. Loughner’s despicable and unjustifiable crimes. I do not think his actions have any excuse and justice will soon see him dead, I fervently hope. The second was that many very able public personages combated the notion that TEA party rhetoric or opposition to Obamacare or the President himself was somehow creating a culture where assassination was permissible and more likely to occur. And they did so very effectively and persuasively. The third is that I was never quite satisfied with how all of the elements of this essay fit together. I will plead, lamely, that as a busy writer and researcher I just did not have the time to fix it to my satisfaction and events eventually overtook the timeliness of the piece.

All of that said. Enough time has passed. There are some relevant things here that may not have been said by others—some I know for certain were not said. And despite it’s flaws as a discreet piece of writing, it is still, I think, readable. Enough prefatory excuses, here it is, weeks late........

With Jared Lee Loughner’s play for historical notoriety on January 8, 2011, in what is one of the most despicable assassination attempts in a regrettably long history of such actions, there has been an almost as regrettable amount of hand-wringing over the freedom of political speech in our republic. Much of this hand-wringing is motivated by shameless partisanship—the very thing that is allegedly at fault for Mr. Loughner’s actions—but a penchant for irrational non-sequitur argumentation is also on full display. This form of argumentative fallacy is prevalent throughout contemporary American politics, but it is rarely properly identified and it’s utterly pernicious effects are even more rarely understood. In this particular instance, it is being deployed to surreptitiously attack the first and second amendments of the U.S. Constitution. In addition, much of the alleged “analysis” is muddying the waters as concerns the natural right of revolution and the derivative right of assassination.

To that in a moment. Read Mr. Loughner’s “views” and you will see the classic non-sequitur caricatured—though entirely unintentionally it would seem. Grammar is a conspiracy to control people, those who do not realize this are “illiterate,” those who are “illiterate” are stupid and deserve at the very least contempt—death at the worst. This is Loughner’s—this is one of them anyway—non-sequitur analysis of the world around him. With it, he eventually was able to rationalize his actions. This sort of sloppy irrationalism (and all non-sequiturs are either inherently sloppy, dishonest, or both) plagues modern culture and political debate—as well as most academic debates. But on top of Mr. Loughner’s logical contortionism, those who shamelessly advocate the “soft” totalitarianism of “social democracy” are adding their names to the list of bizarre and obvious fallacy pandering.

The principal villain—and there are numerous others—in this current logical fiasco is New York Times columnist and Princeton Economics professor, Paul Krugman. Writing in a New York Times op-ed piece on the day after Loughner’s assassination attempt/murder spree, Krugman solemnly intoned: “So will the Arizona massacre make our discourse less toxic? It’s really up to G.O.P. leaders. Will they accept the reality of what’s happening to America, and take a stand against eliminationist rhetoric? Or will they try to dismiss the massacre as the mere act of a deranged individual, and go on as before?” Let me be entirely clear. Even if Mr. Loughner was a right-wing extremist, a card carrying member of some Tea-Party movement, an avid listener to Republican radio commentators, in short everything Mr. Krugman clearly wishes he had been, the non-sequitur would still be illegitimate. No nationally prominent politician or commentator has called for violent revolution, for assassination, for threatening lawmakers, or for anything even remotely aimed at intimidating their opponents with armed and violent mobs. Even if such a person existed, adult human beings are responsible for their own thinking and actions. If a politician I admired (if such existed) called me to revolt and murder leaders of the opposition, I would not as a matter of course listen to or act upon such a demand. If I did, I would be responsible for that choice. Of course, there is no “climate of hate” that inexplicably goads otherwise law-abiding Americans to do something which, if there were no vociferous debate, they would not do. Even if there was, the legal remedy would remain the same regardless.

For decades, those on the left insisted that the acts of isolated American communists—an ideology devoted to revolutionizing (violently) the world, including the United States—should not be used against their non-violent cohorts, fellow travelers, and sympathizers. Now, it seems, such tarring and feathering is not only to be encouraged, it is to be fabricated automatically upon learning of any tragedy when one’s own political ambitions are currently under assault. And they aren’t even stopping at the bastion of liberal bleeding hearts—gun control—they are riding straight on through to quashing voices on the radio they despise and commentators on TV that they loathe. Jay Rockefeller, the Senator from West Virginia and a Democrat, recently advanced this sort of censorship in a sub-committee hearing some months before Mr. Loughner’s actions. No one took Rockefeller seriously back then, but now real bona fide heroes of the movement to assure individual rights to African-Americans—James Clyburn of South Carolina—are publicly advocating censoring their enemies if they are on the “public” airwaves in proportions and volumes they do like or approve of. What a tragic way to belittle an otherwise heroic career.

We ought not to lose sight of why so many Americans are upset, rallying in the streets, politically active, and belligerent at this moment in time. For at least the last two years (and much longer) the federal government, under the control of Republicans and Democrats, has behaved irresponsibly—and that’s putting it mildly. Five trillion dollars has been added to the national debt on a series of fool’s errands, from unnecessary bailouts directed at failed and inefficient industries and firms to nearly one trillion dollars to “stimulate” the economy through one-time expenditures on items not in general demand. On top of that abomination of fiscal recklessness, the President and his allies in Congress rammed through, in the sleaziest way, an overhaul of an already overregulated health delivery system under a subterfuge that healthcare is an unalienable right and must be guaranteed by the state. A great many Americans were alarmed by these things. A great many Americans are still alarmed by these things—as well as their sequels, most prominently a proposed Carbon regulation bill that would fundamentally alter the American economy and way of life. They were and are right to be alarmed. But we need to be clear. They have been moved to political action, not revolutionary action. They have organized to run candidates and campaigns, not collect arms and soldiers. They would not be justified in the latter—but not, as some seem to suggest, from some unalterable principle of absolute non-violence.

The natural right of revolution remains with all of us. It is an extra-legal right, outside the normal course of law and order, to be resorted to by the people only, in Jefferson’s words, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” There is no right to revolt for “light and transient causes;” because the right of revolution, once invoked, holds the potential to unleash a hellish nightmare of civil war and death that can result in a state of affairs far worse than those which prompted it to begin with. It should only be resorted to when all other remedies are exhausted. In the United States today the people still freely speak, assemble, petition, run for office, and vote. They can still, if they care to do so, alter the course of their government, protest its actions and seek redress. While they suffer from onerous regulations in many facets of life, they are not without real and legitimate recourse whenever they should find these things intolerable. But the American people can only attain that sort of change through concerted and vocal political action through numerous election cycles. Our republic was designed that way on purpose to make sure that popular and transient movements, often combined with sudden exigencies, did not create permanent and lasting legacies that could not be undone under the normal course of legislating and governing under the rule of law.

Assassination in American history is terrible enough without Mr. Loughner’s recent actions to cast such an act into nearly irredeemable disrepute. But we must not forget the context that surrounds assassination as a political act. In a free society—in our republic as it now stands—assassination can have no justification. It is, quite simply, murder plain and simple. But not all political societies are like ours—and ours may not always remain as it is now and has been in the past. An assassin’s bullet, or knife, or poison can be a laudable object in a repressive regime, in an absolutist monarchy, in a communist death-state, and in a dictatorship. And this leaves out the insurrectionary actions of slaves in all slave-based regimes from Sparta, to Rome, to Haiti, to the United States. When Marcus Junius Brutus conspired to assassinate the Roman dictator Julius Caesar he stepped, not into infamy, but heroic legend. The putative assassins of Adolf Hitler, while being far less heroic than the ancient Roman, have had their historical legacies partially redeemed through the simple act of trying to murder the German leader. The context of a political regime and the assassin’s motives are what makes, and what has always made, assassination either an abomination to be deplored, or the heroic act of a patriot. For an example of dueling contextual analysis of a political assassination one need read no further that Shakespeare’s thrilling oratorical duel between Brutus and Mark Antony in Julius Caesar. The contemporary American republic is not a place where assassination can be justified. But we should not lose sight of the possibility—a possibility I hope never to see—that the American republic may travel into the territory of all other failed republican experiments: corruption, collapse, and dictatorship. If that ever occurs, then you may expect to see assassination take on a life of its own and whatever is left of the regime to exert itself over more and more of society to quash it out. When force and only force becomes the operative mode of society—when, in Robespierre’s chilling words “terror is the order of the day”—then one may expect the seemingly random acts of violence and assassination that always tends to plague autocratic regimes from Napoleonic France to Soviet Russia.

The response to this tragedy on the part of some is inexcusable. From using the acts of this deranged man as the casus belli for mandating the views to be presented on private television and radio stations to shielding congressmen from the angry and heated rhetoric of their outraged constituents when they go too far afield, they are attacking not Mr. Loughner, but all law-abiding Americans. To use this awful aberrant tragedy as an excuse to dust off old tired attacks on the second amendment is not statesmanship, it is cynical opportunism at its worst. We should not allow our freedoms to be further eroded on the coattails of tragedy, as they have so often been in the past. We need to reflect, mourn, and then return to the business at hand. To go off on an errant path to connect this man to forces we dislike is to embrace this lunatic’s disordered imagination. It is to emulate his logical distortions. It is a futile hunt for the missing link in a despicable non-sequitur. That Mr. Krugman and a legion of Sancho Panzas have done just that is, ultimately, unsurprising, but it is shameful all the same.

Finally, I am reminded of the greatest non-sequitur in American history and how it was used to perpetuate a fraud of remarkable magnitude and epic destruction the likes of which we should be most fortunate to always avoid. As the election of 1860 approached, many Southern politicians began to say openly that if Abraham Lincoln were elected President of the United States, as was appearing almost certain, they would consider that action as, ipso facto, a declaration of war and a legitimate cause to invoke an imaginary “right”—unilateral state secession. The Northern Democratic President at the time, James Buchanan of Pennsylvania parroted this absurd logic in an official message to congress after the 1860 election: “The long continued and intemperate interference of the northern people with the question of slavery in the southern States has at length produced its natural effects. The different sections of the Union are now arrayed against each other...” The cause for this sudden Southern defection from the Union, this revolutionary act which not even Buchanan could, in the end, justify? According to the last doughface (Northern politician of Southern “principles”) to hold the presidency: “all for which the slave States have ever contended, is to be let alone and permitted to manage their domestic institutions in their own way. As sovereign States, they and they alone are responsible before God and the world for the slavery existing among them. For this the people of the North are not more responsible, and have no more right to interfere, than with similar institutions in Russia or in Brazil.” It did not matter than Lincoln ran on a platform explicitly declaiming any desire to interfere with slavery where it already existed under the protection of state laws—for he would control such diabolical levers of government like the post office as well as a very modest frontier army whose only recent functions were fighting Indians and quelling Mormon rebellion. Lincoln condemned slavery as a moral evil, wanted to prevent its expansion (something that would have occurred anyway if Stephen A. Douglas, John C. Breckinridge or John Bell—the other candidates in 1860—had been elected instead), and wished to see it end someday (famously predicting 1960 as the possible day it would die out “naturally.”)

Yet Lincoln’s constitutional election was cause for a “legal” revolution masked under the guise of an ahistorical “right” on the part of individual states to withdraw from the Union? It was a string of non-sequiturs that merely justified a hysterical revulsion to the notion that slavery had no moral justification, would be prevented from spreading across the continent, and would thus have to be legislated out of existence eventually to avoid the calamity all slaveowners feared—servile insurrection. To avoid that “disaster,” they precipitated a civil war which, ironically, destroyed slavery in little less than four years, boggling even Lincoln’s very moderate and gradualist expectations circa 1860. Even then, Southern apologists for slavery actively suppressed free speech in the South, stamping out all public criticism of the peculiar institution, while simultaneously attempting to intimidate Northern states into doing the same. They famously succeeded for a decade between the 1830s and 1840s in gagging the congress from hearing petitions from concerned citizens about the blight on their republic that was human slavery. Those intrepid souls were the violent agitators of their day because they simply wished to express their outrage over the government’s timidity in attacking slavery with the powers at its disposal—for instance the power to regulate the territories of the Union before they were organized as States. When the Confederacy finally attempted to break loose from the rest of the republic and established its own government, it quickly engaged in a whole substratum of intimidation throughout the South to make sure Unionists and other “disloyal” forces left, kept their mouths shut, or were, in some cases, imprisoned and/or put to death. Nothing in Lincoln’s entire war-effort against Southern sympathizers in the North compares to the literal reign of terror which loyal Unionists in the South suffered through. It contributed to the over 100,000 citizens from the seceded States that fought in the Union army—a figure that dwarves many times over the couple of thousand citizens of non-slaveholding states that fought for the Confederacy.

The sentiment and personnel that spawned and lead the Confederacy in one of the most ignoble war efforts of modern times—explicitly fought for the “civilizing” force of race-based slavery—was premised on a series of logical fallacies and non-sequiturs. From the notion that the States “created” the Union, to the “right” of legal unilateral state secession, to the very casus belli of the war—the constitutional election of a President they did not like. No long train of abuses existed anywhere. The South was oppressed only with the knowledge that their detractors were hitting a sore spot when they condemned slavery and the perpetual fear that Jefferson had been right—that justice rested with the slaves—and that agitation would eventually lead to a massive rebellion they would be unable to suppress. In response to these “oppressions” they reacted violently and despotically, attempting to crush civil society and free speech, creating a political culture of violent intimidation in order to block voices they considered “unpleasant,” “dangerous,” and likely to “incite violence.” The real sign of a dangerous person is not the one who uses military metaphors and charged passionate speech in defense of liberty; instead it is the person who attempts to suggest people have no right to be upset, to voice their concerns in angry or unpleasant ways, or no right at all to appeal to their fellow citizens to pressure their government in the defense of freedom.

Sharron Angle has been a punching bag during this recent spate of non-sequiturs for having dared to utter the following: “If this Congress [the 111th] keeps going the way it is, people are really looking towards those Second Amendment remedies.” Now, what the candidate meant, I think, was that when the government ignores the people and imposes itself upon them with force to take away their ability to freely contract for services and products that infringe on the rights of no one else, it is injecting force into civil society. The whole point of the government is to make sure force stays out of civil society by retroactively punishing those who introduce it in the first place via the rule of law and the criminal justice system. When the government itself begins to intermeddle in the private affairs of the people, and begins creating winners and losers (intentionally or not) it is going to start creating an ever expanding list of enemies. Most of those enemies are merely going to grumble. But the longer and more invasively these intrusions occur, the more and more likely it will be that some of the victims of these interferences will lash out violently. While we still have the ability to change the policy of the government, this is not a justifiable alternative or reaction. But to pretend it is not a logical consequence would be to deny all human history, human nature, and plain common sense. The second amendment exists, in part, to guarantee that arms are not monopolized by a single, centralized standing military force—in case the people should ever need to resume their unalienable right to alter or abolish, in some cases violently, their form of government. If Angle meant to encourage people to take up arms, then she was in error, and regardless of her intent, this comment along with others combined to create an image of her as an unstable and unpredictable loose cannon that Nevadans—despite intense loathing of Senator Harry Reid—could not comfortably vote for. She almost certainly meant it as simply a warning that governments which overreach into the private lives of their citizens, while those citizens are armed and not yet the slaves of totalitarian regimes, are likely to face the occasional violent rebuke. These rebukes, while inexcusable, should—if they become frequent—serve as a strong warning to all that the current state of things is quickly descending to dictatorship and/or revolution.

The agitators of 1860—and Lincoln could hardly be counted among them—simply pointed out what was to them (and us) the obvious. Slavery was morally indefensible. It was a war against nature. Sooner or later, it would blow up catastrophically as it already had in Haiti, Latin America, ancient Greece and Rome, and even the United States. Southerners not only tried to suppress and ignore these truisms, but despite all historical evidence to the contrary, tempted fate by inviting war into a territory teeming with dissatisfied and disaffected slaves. Then and now, those who prefer putting their hands over their eyes and ears to hum over the unpleasant noises and block out the unpleasant sights around them always try to shoot the messengers who state what is plain to the honest observer. Perhaps ironically, these outrageous non-sequiturs of today, if they ever get put into operation, will result in the very outrage and probable violence they claim to be against.

2011-02-22T22:05:00.000-08:00

First in War, First in Peace, First in Solvency?

First in war—first in peace—and first in the hearts of his countrymen, he was second to none in the humble and endearing scenes of private life; pious, just, humane, temperate and sincere; uniform, dignified and commanding, his example was as edifying to all around him, as were the effects of that example lasting. – General Henry Lee

George Washington died, unlike any subsequent American statesman, with a universal sense of loss felt by his countrymen. For a quarter of a century, one man seemed to hold the fate of the American Revolution and the experiment in republican self-government afloat through his own herculean character and self-control. In a number of real crises Washington was trusted with an amount of power and a position of importance that few men in all of recorded history have ever resisted abusing. Americans and observers the world over marked on this at the time and marveled in it. So should we. There has been nothing like it since as all subsequent revolutions ended in anarchy and/or dictatorship.

Much ink has been, and will continue to be, spilled in investigating Washington’s life and legacy. New biographies of major proportions are written about his career at least every decade or so and countless references can and will be made to our first president on seemingly every issue under the sun. But in the present, few issues loom over us quite like our ballooning national debt—being compounded at an unprecedented rate by annual deficits unlike anything we have ever seen in the entire history of the republic.

National debt has been a problem since the very creation of the republic. The very existence of an unfunded debt led very able and intelligent statesmen to toy with the notion that they could goad army officers into threatening to march on the Continental Congress in order to force that body and the states to properly finance the debt and satisfy the nation’s creditors. Fortunately, in that instance as in so many others, Washington was there to deftly and firmly handle the crisis, remind his friends that unleashing the army from its subordinate position to the civil authority would likely—as it had so many times before in history—“deluge our rising Empire in Blood.” The Rubicon remained uncrossed.

But the conspiracy at Newburgh was just the latest near miss, circa 1783, with a problem well known to the founding fathers and one of the proximate causes that impelled them to abandon the Articles of Confederation for the current U.S. Constitution in 1787-89. That problem related to the fundamental strength and stability of their republic—its ability to finance itself through some manner of tax revenue—and, derived from that, its ability to secure loans and raise armies in times of emergency and war. The late 1780s were not peaceful times in the western world. The British had never evacuated their frontier forts—as stipulated by the Treaty of Paris in 1783—because they were protesting what they considered the American failure to deal justly with loyalists and their property. War—including the past war debts from the Revolution—stalked the republic in its earliest years and with it the republican nightmares of standing armies, burgeoning debts, and higher taxes. In short, debt was tied up with a nexus of fears and worries that were all too real and that were illustrated in the fates of former republics, the corruption of the British government, and the collapsing French monarchy mired in the debts of a century of warfare.

On the matter of paying the war debts from the Revolutionary period and protecting the republic through a government capable of raising armies and the funds to pay for them, Washington’s loyalties were never much of a secret. But Washington was determined to not be a Caesar or a Cromwell (later Napoleon’s name would join the list). To have used the trust he had gained during the long years of hardship of the Revolution, even for a purpose he deeply believed was necessary, troubled Washington greatly. But his friends, at this time mainly his Virginian neighbors Thomas Jefferson and James Madison, as well as his former aide-de-camp Alexander Hamilton of New York, persuaded him that the times were dire enough—that the country’s very future was in jeopardy—that Washington’s legacy would either be enhanced by success or that he and the country would fail together. In the event of the latter, if he had not attempted to save his country all his previous efforts would have been for naught and would be forgotten at best.

It is in this context that the 1790s need to be understood. This is difficult because the Federalist overreaction to the war scare with France at the very end of the period and Jefferson’s interpretation of his subsequent election to the Presidency has obscured much of what was really going on before 1798-99. George Washington, upon being unanimously elevated as the nation’s first President, wanted to give what was already expected to be the new cabinet’s most controversial and important position—the Treasury—to Robert Morris, the Financial Superintendent most responsible for giving any semblance of soundness to the Continental Congress’s finances during the war. Morris was not interested in the job however (angling for a Senate seat), leaving his old lieutenant—Gouverneur Morris—or Washington’s financially astute former aide Hamilton the likely candidates for the job. Hamilton’s plan—assumption of the state war debts, creation of a national bank similarly modeled after the 17th century Bank of England to finance the debt, and the promotion of domestic manufactures—was largely a repackaging of what nationalists had been fighting for since the final years of the Revolutionary war. Each piece of it was tied to what all perceived was the new government’s primary function—to gain respect in the world and to protect the freedoms won by the revolution against anarchy at home and tyranny abroad. Almost all of this program was passed by the first congresses—the major exception being the idea to have direct Federal support for certain domestic manufactures. In his Second Annual Message to Congress, Washington gladly reported the first fruitful results of the nation’s new footing: “The progress of public credit is witnessed by a considerable rise of American Stock abroad as well as at home. And the revenues allotted for this and other national purposes, have been productive beyond the calculations by which they were regulated. This latter circumstance is the more pleasing as it is not only a proof of the fertility of our resources, but as it assures us of a further increase of the national respectability and credit; and let me add, as it bears an honorable testimony to the patriotism and integrity of the mercantile and marine part of our Citizens.”

Washington’s two terms in office occurred at a time that any rational person would have considered dangerous. The new republic got started already heavily in debt, assuming powers heretofore unexercised by any authority since the British authority had collapsed, frontiers being monitored by a string of British forts and harassed by their Indian trading partners (the British traded weapons for furs primarily), pirates in North Africa raiding American commerce and demanding tribute, and the republic’s best ally, Louis XVI, facing revolution in Paris. It was hardly a propitious time to begin, but neither was it a time to not have a more powerful and effective government in place. Hamilton’s financial plan, which was heavily debated in Washington’s cabinet—the Commander-in-Chief accepting argument papers from both sides before endorsing Hamilton—as well as both houses of Congress, came just when the country needed to begin arming for war (both with the Indians and the British), paying off the pirates, and finally getting a hold on the national debt.

Below are charts illustrating the national debt during this period from various vantage points including total nominal dollars, per capita nominal dollars, and adjusted per capita dollars. I have included the Civil War years in the final chart to illustrate just what a tremendous emergency that conflict was and how the debt accumulated in those years dwarfed all that came before. What should be immediately apparent is not only the fact that the country began with nearly it’s highest debt right at the beginning, but that the financial plan put in place under Washington—which the Jeffersonians did not significantly alter except during the 1812-1816 period when the First Bank of the United States ceased to exist—quickly led to its reduction within a decade interrupted only by the Louisiana Purchase and the War of 1812. Those latter two endeavors were successful (meaning the Government could afford them and survive), along with a war against the Barbary Pirates, uninterrupted interest payments, continuing wars against and payments to various Indian tribes, and the real first steps at retiring the debt, because of Washington’s priorities in the first years.

Upon leaving office, Washington issued his farewell address. That document is a wonderful legacy to us, the heirs of the Revolution, and it addresses a great many topics that are still quite relevant. But on the matter of debt and debt financing, Washington was quite explicit: “As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible: avoiding occasions of expence by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expence, but by vigorous exertions in time of Peace to discharge the Debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burthen which we ourselves ought to bear.” To those who would look to spend more when government revenues fall, and who would cut the defense of the republic in a time of peril, when almost three times as much money is being allocated to non-defense spending, Washington’s farewell words are a stinging rebuke. This should surprise no one. The founders were republicans and liberals who invested the Constitution of the United States with ample powers to foster Union, raise armies and navies, pay for them, and accumulate (temporarily) and finance debt. However, it was a government limited by the rights of its individual citizens and its own crucial, but circumscribed, sphere of operations along with its strict divisions of power between the branches of the government and between the Federal government and those of the States.

Finally, Washington knew he stood first in a nation of equal citizens and not a nation of subjects. As such, he knew and expected everyone else to know, that they could not simply elect officials and then abdicate their responsibilities as citizens. Speaking of spending and debt Washington lectured his countrymen as only he was allowed: “The execution of these maxims belongs to your Representatives, but it is necessary that public opinion should cooperate.” If that meant more revenue was needed for the “public exigencies” then citizens should be there for their republic, but always with a view that any suffering would be temporary so long as everyone was willing to deal with the crisis promptly and honestly. In his last message to Congress, Washington said, once more, that “it will afford me, heart felt satisfaction, to concur in such further measures, as will ascertain to our Country the prospect of a speedy extinguishment of the Debt. Posterity may have cause to regret, if, from any motive, intervals of tranquility are left unimproved for accelerating this valuable end.” His countrymen did just that in the decades to come, retiring the debt entirely in the second term of Andrew Jackson less than forty years later.

Hard choices and dangers lie ahead of us. On that score no one should fool themselves in the least. A debt as large as $14 trillion is scarcely comprehensible and seems entirely out of our reach as far as ever getting it to stop accumulating, let alone to begin reducing it. But we must begin that process and we must begin it now. None of Washington’s contemporaries, not Hamilton, not Adams, not Jefferson, not Madison, not any of them that I am aware of, advocated an always expanding unlimited debt. The most Hamilton ever said on that score was that in times of warfare, the rate at which the government could and should accumulate debt was irrelevant so long as it could finance the interest. If the government were destroyed, its debts would hardly matter. But all were far too familiar with the wrecks of past and contemporary governments to be cavalier on the subject of debt. Washington always advocated a bold, firm, and manly confrontation of problems if one wanted to honestly deal with them.

No issue deserved a resolute response more than the fiscal solvency of the republic—quite simply everything else depended upon it in the late 1780s. If we do not confront our own ever-growing mountain of debt, we will have come right back to where we began when our first President rightly said “the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” Those Americans proved themselves worthy of his confidence. Will we?

2011-02-18T13:43:00.000-08:00

This coming Tuesday, February 22, marks the 279th Birthday of George Washington--the undisputed first man of our republic. In light of current events and what seems to be an inescapable future of crippling debt--already over $14 trillion with no end in sight--I will be posting a special essay on Washington's life and achievements in politics (as opposed, to say, his handling of the Continental Army in the Revolutionary War) and what, if anything, his example offers to us, his legatees in republicanism.

On a side note, the day is also the 164th anniversary of Zachary Taylor's astounding victory over the Mexican army of the dictator Antonio Lopez de Santa Anna at the Battle of Buena Vista. There is no doubt that Taylor's victory over an army more than three times the size of his own force (less that 5,000 men) propelled the very unpolitical "Old Rough and Ready" into the White House less than two years later. As one of our more stalwart and meritorious Chief Executives, I will make the special plea that on Presidents Day you not forget some of the lesser known, but upright and laudable, figures who've held the Executive Chair and performed their duties ably and without malice or malevolence of purpose. Surely, Zachary Taylor, who died midway into his term in the summer of 1850 in the midst of an unscrupulous barage of Southern threats of war and secession (Taylor was himself born in Virginia, raised and matured in Kentucky, and officially living in Louisiana when not assigned away with the Army), was such a figure and worthy of our continued respect and gratitude.

2011-01-04T14:06:00.000-08:00

Writing to Senators and Representatives

I'm convinced that legislative aides and interns are the only ones who see most of the messages the American people send to the Congress, but there is some value in the informal enthusiasm poll. In the next two years it may be more important than ever for things like repealing the healthcare bill, halting government regulatory growth, and cutting (actually cutting, not just slowing the increase of) spending, to have your congressmen know what you think and where you stand, and what you'll think of their actions. It may not always help, but writing these people can never hurt. Below is a letter I sent to my cogresswoman, Shelley Berkley about the upcoming effort to repeal last year's healthcare bill. I have also provided the links to finding your representatives and writing them electronic letters.

4 January 2011

Dear Congresswoman Berkley,

I wrote to you last year to plead, on behalf of your constituents and the lessons of history, for you to take a bold stand against the entirely unnecessary, utterly unconstitutional, and completely amoral bill to allegedly “fix” the world’s premiere healthcare system. You ignored my plea and, residing in one of the country’s safest congressional districts, were re-elected. I do not begrudge you this. But certainly you noticed that a few of your colleagues are gone. More than just a few. Your fellow Nevada Democratic colleague, Congresswoman Dina Titus has been sent packing, and her support of things like the corrupt healthcare bill certainly contributed to her ouster.

The point of my letter to you today is not to refight the previous election. That is over, and now the people are represented by a new congress more attuned to their continuing opposition to the healthcare bill. A repeal bill is going to be proposed in the coming days. You have an opportunity to fix your previous egregious error. I do not mean to insult you. But there was and is no justification on any grounds whatsoever familiar to Americans that could allow the bill you passed last year to be countenanced. It was built upon the collectivist notion that we are our brother’s keepers and that we have an obligation to pay for his healthcare. WE ARE NOT! WE DO NOT! That sort of statist and collectivist non-sense is the reserve of our worst enemies from the last 100 years. It is not progressive—it is a vestige of the most primitive and barbaric tribalism the world knows.

Now you have a chance to change course. You can join the majority of the American people and declare for liberty and freedom. To repeal regulations and onerous laws, not pile them on top of us. History is replete with moments of choice when one can follow the path of greatness—a path which has never been paved with growing the government to gargantuan proportions—or fall into the pit of power and collectivism. You chose poorly last year. Now you’re in a new year and a new congress. You have an opportunity for not just bi-partisanship, but for being with the majority of the American people who do not want their freedoms trampled in the name of giving healthcare to those of us, myself among them, who choose to not buy health insurance. I did not ask for this bill, and even if I had, your job is not to placate all the clamoring whims of your constituents for the subsidized services of other citizens. I do not ask you to do anything other than uphold your oath to the Constitution of the United States of America. Instead, you voted to make my choice to not deploy my scarce resources for health insurance a cause for the government, in 2014, to fine me. That is a lot of things, but do not dare to tell me that it is moral, or constitutional or much else than the despicable and lousy thing that it is.

You are now presented with the rare opportunity to correct a mistake. Please take it, there is likely not going to be many more chances to do the right thing on this subject.

Thanks for your consideration,

Your constituent,

Alexander Marriott

For the House of Representatives:
https://writerep.house.gov/writerep/welcome.shtml

For the Senate:
http://www.senate.gov/

You can also try writing to the President, but I'm not sure that's of much use:
http://www.whitehouse.gov/contact

2011-01-04T10:16:00.000-08:00

Redacting Huck's Use of the Words "Nigger" and "Injun"

Below is a copy of an email that I sent to Dr. Alan Gribben, an English professor at Auburn University at Montgomery. According to the news story which is linked at the end of my email, Dr. Gribben is responsible for a rather callous and inexcusable "edition" of a novel Mark Twain never wrote, but which is going out under the title of one of his works. This is an academic disgrace so far as I have anything to say about it, and I let Dr. Gribben know what I thought of his activities. If you are also concerned, his email is agribben@aum.edu. For more details and information on the publisher that would put this sort of thing into print, see this article.

4 January 2011
Dear Dr. Gribben,

I'm sure you must have had what you thought were good intentions when you decided to be a part of a project to "update" Mark Twain's The Adventures of Huckleberry Finn, but how in god's name could fundamentally changing the diction and dialogue of the novel at all be appropriate to a scholar such as yourself? Instead of limiting your hand in presenting the novel in, say, a thoughtful and engaging introduction that would seek to explain Mark Twain's time and place, and Mr. Clemens's own views on the great issues of his day, you have decided to alter his original text in some misguided effort to make his story more acceptable to modern audiences who hear far worse in music and see far worse on television on a regular basis than Mark Twain ever wrote in any of his wonderful and nuanced fiction and non-fiction works. Would you advocate that some Dumas scholar come along and "update" The Count of Monte Cristo so that the Count was less vengeful since in the modern world, holding murderous grudges is frowned upon? Would it be appropriate to "update" James Fenimore Cooper so that his novels are not so patronizing to the American Indians? What about any literature that offends any modern sensibility on any topic? Should we eliminate scenes? Characters? Good lord, what would you have done to Uncle Tom's Cabin in the name of "updating" it? As a professional scholar, sir, your duty does not lay in "updating" the primary source material which you analyze and study. Mark Twain's works were not produced in our time or for timid and uninformed readers, that's what makes reading them so damn interesting. The language jars and sometimes offends our ears. GOOD! That's the point of communing with great works whether from 19th century America or classical Athens or medieval Japan. Altering Twain's work so that a mob of philistines might have an epiphany and change their reactionary position on reading a harmless and wonderful piece of literature is beyond craven, it is a fundamentally cowardly act of betrayal to the academy and all that makes it great. This is why people point at academics and shake their heads with incredulity. You have made the jobs of your fellow academics in communicating with the general public that much more difficult. And for what? So that those too lazy to learn the historical context surrounding the novel can read without offending their fragile psyches? I was taught by many great English teachers that the language authors chose and used was important, deliberate, and informative. It helps readers discern intent, time, theme, context, and a host of other things that help us to understand and appreciate literature. How could altering the deliberately written text of a classic novel add anything at all to understanding? This is beyond the abomination of abridgement, this is you stepping into the midst of the novel and attempting to "improve" it for some half-baked notion and constituency (I mean this almost literally) If the story surrounding what you've done is inaccurate, please correct the record for me, because as it stands, this is one of the worst things I have read about in the field of English in some time, and that's saying a lot. Found here.

My regards,

Alexander Marriott

Ph.D Candidate, American History

Clark University

For a scholarly and non-bastardized edition of this fine novel:

2011-01-02T01:47:00.000-08:00

Reading Two Sets of Books, Understanding Neither: The Intellectual Life of Christopher Hitchens

Diagnosed with esophageal cancer after having written a memoir must have made Christopher (don’t call him Chris!) Hitchens smirk at his good timing. Hitch-22: A Memoir (June 2010) is not, of course, an autobiography. While one gains a heady appreciation of the author’s life in far away places and in the English boarding schools he attended as a boy, there are some things that are mostly absent—like Peter Hitchens (his Tory brother), his wives, and a thoroughgoing breakdown of what makes Hitchens tick (and why).

Of course, all of these things make their appearance in a largely thematic series of recollection based essays (“Fragments from an Education,” “Salman,” and “Edward Said in Light and Shade (and Saul)” to name but some of the more interesting). Hitchens is incredibly open about his mother and father and their less than perfect relationship, which lead to his mother’s rather unpleasant early demise at her own hands whilst fleeing with what seems to have been a rather disreputable ex-clergyman (who also killed himself). And the explanation of Hitchens’s intellectual development is strewn throughout a 422 page journey of somewhat epic proportions. But there is never a clear sense of how Hitchens decided upon his initial course of extremism on the Left, aside from old hat pronunciamentos on the Cuban Missile Crisis and the beginning (of wider escalation) of the Vietnam War. But those incidents did not turn everyone (including his brother Peter) into dyed-in-the-wool Socialists in his native Great Britain or anywhere else. So why does Hitchens pursue a life of Leftist “scribbling” when others among his colleagues in boarding school and then Oxford went on to a more mundane (and with the rise of Thatcher, of whom he has many good things to say, far more reasonable) Toryism?

We gather early on that Hitchens’s mother Yvonne was a more influential force in his youth than his father—affectionately called “The Commander” for his naval service during the war. What did that mean for Hitchens’s later life as a radical? Born in 1949, Christopher Hitchens seems to have had a somewhat common baby-boomer experience involving an indulgence on the part of his parents coupled with a complete lack of any commanding direction other than to “move up.” His mother knew primarily that she wanted her sons to attend good schools that would allow them, assuming they did well, to attend the highest universities. Beyond that however, Hitchens elucidates no guiding ethos bequeathed from either mother or father. This does not mean he thinks—or wants the reader to think—his parents were inept or deficient, but that they simply were not the sort of people who did the sort of child-rearing that made radical Leftism unlikely. Hence the brothers could, and did, end up on completely different ends of the traditional political spectrum without either of them having “rebelled” against their parents in any traditional sense.

Hitch-22 is stocked full of anecdotes about a wide variety of New Left figures whom Hitchens had many opportunities to know and cultivate over his decades as a writer for various newspapers and magazines (mostly on the Left and far Left of the English literary scene). His list of acquaintances and friends stretches from C.L.R. James, Isaiah Berlin, and Christopher Hill, to his bosom chums James Fenton, Martin Amis, and Salman Rushdie. Also among Hitchens’s acquaintances and (ex) friends are Gore Vidal, Edward Said, and Robert Conquest. There is no doubt that Hitchens has had an influence that goes far beyond his contributions to Vanity Fair. That said, it is clear in the pages of his memoir, that Hitchens’s intellectual development was a largely ad hoc affair. He attributes some of this to the intellectually lazy atmosphere of the chaotic times: “Did I really think that my examination in logic and philosophy didn’t matter much, because a revolution was in progress or at least in prospect? I did.” And: “This was the laid-back early 1970s and I had neither the wish nor the ability to be “judgmental.”” His reading schedule for many years was extremely derivative. By that I mean that apart from assigned texts in his very rigorous formal education, Hitchens seems to have been lead along in his reading by surrounding people and events. This is true of all of us to an extent, but I think it accounts for his immersion amongst the largely unread and unknown literature and poetry of the modern left. On the other hand, much of his development was guided by the external stimuli that greeted his wide open eyes and ears while abroad in the world’s most horrendous examples to leftist utopian folly. This is perhaps his most heroic quality as an intellectual, an honest commitment to the evidence the world presented him with. As one reads of his experiences in Cuba, Argentina, Pakistan, Iraq, North Korea, and elsewhere around the world, one gains an appreciation for the power of honest induction altering one’s larger network of axiomatic concepts.

Hitchens, as becomes clear in reading, is no systematic philosopher. One gains the sense that for Hitchens, systematic philosophers are somewhat anathema. Perpetual skepticism of all claims to certainty is the sine qua non to the rational man trying to live the good life. The constant theme of the book (hence the title) is his self-admitted propensity to try to have life both ways—the respectable radical, later the radical conservative (this in the stale and fundamentally inaccurate sense of Left vs. Right). And now as he enters his final years he battles both religious fundamentalists and moral relativists, but he does this on a quick-sand epistemology of uncertainty. Of course, this is Hitchens having it both ways, again. Listen to Hitchens in a debate and he is anything but uncertain. But when he has to write it all down to himself and others, he’s left with the relativist’s lame shrug. “It is not that there are no certainties, it is that it is an absolute certainty that there are no certainties. It is not only true that the test of knowledge is an acute and cultivated awareness of his little one knows (as Socrates knew so well), it is true that the unbounded areas and fields of one’s ignorance are now expanding in such a way, and at such a velocity, as to make the contemplation of them almost fantastically beautiful.” For what purpose would one contemplate questions for which certain answers were never possible? Hitch-22 indeed.

Immediately after basking in this allegedly beautiful prospect of an infinitely unanswerable universe (which is small comfort to all of humanity laboring under real questions of epistemology, ethics, politics, etc.) he then rather blandly claims: “It’s quite a task to combat the absolutists and the relativists at the same time: to maintain that there is no totalitarian solution while also insisting that, yes, we on our side also have unalterable convictions and are willing to fight for them.” What unalterable convictions? How do we know there is no totalitarian solution? How do we arrive at an unalterable conviction which we would be willing to die for in a world where the only absolute is that we cannot actually be certain of anything? Logic would seem to point out that he has asserted a grand contradiction (how can one be certain that nothing is certain?), but if Hitchens was aware of the problem he decided to leave it be, rather than acknowledge what is a tremendous conundrum. And a rather obvious and silly one at that.

What is truly tragic in all of this is that Hitchens is very well meaning, seems to have a strong sense of right and wrong (though much of his conception of right is still a default leftism that he imbibed over a lifetime of Trotskyism), and goes out of his way to condemn, when no one else will, the morally fatuous shysters that plague modern American culture. He also mercilessly attacks his own former friends and comrades on the Left who are willing to countenance any atrocity so long as it is perpetrated against the West, but who become apoplectic if a western power (invariably the United States) defends itself. Perhaps this tragic impotence is phrased best when Hitchens writes: “To have spent so long learning so relatively little, and then to be menaced in every aspect of my life by people who already know everything, and who have all the information they need...More depressing still, to see that in the face of this vicious assault so many of the best lack all conviction, hesitating to defend the society that makes their existence possible, while the worst are full to the brim and boiling over with murderous exaltation.” His reliance on the Left to stand against totalitarians (he’s a devotee of Orwell and, bizarrely, the rather loathsome creator of the Red Army Leon Trotsky) was repeatedly disappointed as of course it would be. This, it seems, has merely added to his posture of uncertainty—indeed, his certainty of it.

The human need for a means of answering the important questions of life—where am I? how do I know? what should I do?—cannot be answered with a shrug, a wink, and a glib comment that all things are uncertain except those things which we happen to like for some reason. It is amazing that Hitchens fails to detect the similarity between this contradictory state of affairs and the religious mysticism he so stridently and correctly excoriates. Religions only offer certainty for very specific particulars. For anything requiring serious explication religions simply offer the epistemological copout of faith. If that fails, most fall back on the threat of force (“Do this or be punished”). Hitchens himself could and would offer answers to anyone asking these questions, but his answer to the follow-up of “how do you know this is what I should do? why should I do this and not that?” would be what precisely? At least your local crazy shaman could offer an answer. For a man who has seen as much of humanity as Hitchens has, he should know better that in the effort to win the minds of others, a shrug is not a suitable answer. A paean to the beauty of uncertainty will not comfort a person struggling to survive. As an old revolutionary, he should know this almost instinctively.

Unfortunately he bypasses a potential way of answering this problem during what is a rather serious and solemn part of the memoir (reflecting on the death of an American soldier who had been so inspired by Hitchens’s case for the war in Iraq that he enlisted) with a glib and unserious remark: “But Mark Daily wasn’t yet finished with sending me messages from beyond the grave. He took a bag of books with him to Iraq, which included Thomas Paine’s The Crisis, War and Peace, Ayn Rand’s Atlas Shrugged (so, nobody’s perfect), Stephen Hawking’s A Brief History of Time, John McCain’s Why Courage Matters, and George Orwell’s Animal Farm and Nineteen Eighty-four.” This young man took a rather eclectic group of books with him to Iraq, one of which was Ayn Rand’s very serious and enlightening 1957 classic about the producers of the world going on strike when confronted with their enslavement to an ever encroaching state that demanded their subservience to the rest of society as a moral absolute (the plot in a very distilled and unsatisfying economy of words). Rand was a Russian dissident who, like Hitchens, emigrated to the United States dreaming of skyscrapers (Hitchens writes in one of the book’s most outstanding passages: “not long after leaving Cambridge and arriving in Oxford I began to have a recurrent dream. There was nothing especially subtle about it from the imaging point of view. I simply found myself somewhere in Midtown Manhattan, looking up at the skyscrapers. But the illusion was always accompanied by a feeling of profound happiness, and a sensation of being free in a way I had never known before. American music and American culture were much more pervasive in England by then, and much more non-conformist than they had been in the early days of TV, so that I had an early exposure to the great conundrum that has occupied me since: How is the United States at once the most conservative and commercial AND the most revolutionary society on Earth?”) and freedom unlike anything she had known under Lenin, Trotsky, and Stalin. She was a woman who adhered to and adored the Enlightenment at least as much as Hitchens could ever hope to do. She had to battle the relativists, the religious fundamentalists, the rising Conservatives on the right, as well as the altruistic socialist forerunners of Hitchens long before Hitch was a babe suckling at his mother’s breast. She wrote serious and philosophically important literature and non-fiction and yet Hitchens’s has the certainty left to cast her off as a chink in this young man’s character because he took her magnum opus with him to Iraq?

This stands as the most inexplicably egregious error of the book not to mention a very uncharacteristically inappropriate remark about a dead man Hitchens so obviously admires and respects (rightfully so). It illustrates Hitchens’s own cowardice in the face of secular certainty (falsely associating certainty with the irrational religious and the secular totalitarians, he condemns it reactively wherever he sees it, with certainty!), his own inescapable allegiance to the altruism of revealed religion (though his is distilled through allegedly secular socialist mumbo jumbo to steal Kipling’s apt term), and his ultimate failure to take account of the broad sweep of ideas and literature instead favoring the very narrow and esoteric world of his ideological comrades. Martin Amis may be a very fine novelist as well as his best friend, but Hitchens cannot seriously maintain that Amis has had an influence anywhere near Ayn Rand’s. That goes for Fenton and Rushdie as well (the latter would be almost entirely obscure had he not stepped on the toes of fanatical Islamists). This is unfortunate, not for me as an admirer of Ayn Rand’s but because she anticipated and articulated every single one of Hitchens’s most apropos insights well before he had to learn them through the grimmest possible experiences, including what is perhaps his most important historical realization about political revolutions: “In the course of all of them, even if not without convolutions and contradictions, it became evident that the only historical revolution with any verve left in it, or any example to offer others, was the American one.” She also offered up what are perhaps the most definitive condemnations and refutations of mysticism and relativism that we have in any language. They are, quite seriously, the stoutest defense ever fielded for Western Civilization and they came from a refugee of the East. But alas, he’ll have none of it.

But Hitchens has always lived in a world where, like Janus, he looks both ways. The conservative Leftist radical is an annoyance to his comrades, while the radical neo-conservative is hated by all. Unfortunately for Hitchens, moderns sense hypocrisy in operating with two sets of books. Being a Janus is to be condemned not lauded. As well it should be.

2010-09-27T04:02:00.000-07:00

Mosques in America, Part Two

I used to listen to Dr. Peikoff's podcasts every week, but as with much else, just haven't found the time as of late. I did find a transcript of his thoughts involving the Ground Zero Mosque situation here, and I recommend that anyone concerned over this issue read them carefully.

Having pondered the implications of Dr. Peikoff's analysis, I find it necessary to clarify my previous comments. I will say that Dr. Peikoff brings up an important point about the legal differences involved between a state of war and a state of peace, even in a free republic such as ours. But, his claims about property rights are, I think, mistaken in a couple of important respects. First let me quote the relevant passages:

"Let’s start with property rights. Property rights are limited and they are contextual. You cannot do anything you want with property even though it is yours, not if its ramifications objectively entail a threat to the rights of others. You can’t build a bomb in your home. You can’t even build a big bonfire in your backyard legitimately because the principle of rights is that property rights are a derivative of life as the standard and there can be no right to threaten anyone’s life nor indeed to threaten anyone’s property. Second, rights are contextual. In any situation where metaphysical survival is at stake all property rights are out. You have no obligation to respect property rights. The obvious, classic example of this is, which I’ve been asked a hundred times, you swim to a desert island — you know, you had a shipwreck — and when you get to the shore, the guy comes to you and says, “I’ve got a fence all around this island. I found it. It’s legitimately mine. You can’t step onto the beach.” Now, in that situation you are in a literal position of being metaphysically helpless. Since life is the standard of rights, if you no longer can survive this way, rights are out. And it becomes dog-eat-dog or force-against force."

"Now, let me give you an analogy if it’s not self-evident. Japanese strike pearl Harbor. We declare war. Japan, the Japanese, are then given a large spread of land in Pearl Harbor to build a temple celebrating — I don’t care what. The Japanese superiority or Shinto peacefulness or — I don’t care what. Now, if you can even conceive of that as justified because of “property rights,” then I say you haven’t a clue what property rights, or individualism, or Objectivism is saying. Because what permitting that amounts to is “Roll over. Kick me. Kill me. I have nothing to say.”

"If someone down the street lobbied grenades into your harm which you were renting. And the police wouldn’t do a thing. And you fled. And he buys the property and builds the Church of Home Bombing on your land. Would you say, “Oh! Well, it’s his. It’s his property.” And don’t think that’s a false analogy."

First of all, the island example is a reference to a specialized state of nature. No government exists and for the purposes of the thought experiment, only two men exist, one of whom claims to own everything and casts the other to a certain death. I do not see how or why Dr. Peikoff digressed into such an inapplicable "example," except as a way to transition to the claim that metaphysical survival is currently at stake in our war with Islamic fanatics in the Middle East. Even for that limited purpose, it seems so disanalagous to me as to promote confusion and befuddlement. We do not live in a state of nature, and Islamic fanatics do not hold the position of the "island owner," in the world in general and not in our own state of civilized society.

Property, which in all liberal and enlightenment political theory pre-dates the creation of government, can only be curtailed by one principle--that of initiating force against the rights of others. In order to get to that in the case of the proposed Islamic Cultural Center (or any Islamic building or mosque) we need to establish that those proposing the building are part of a larger movement in league with overseas fanatics trying to kill us, or that they are domestic criminals conspiring to do the same on their own. If either of these is the case, then I'm sure they are being investigated and will be arrested and prosecuted. If they are not, if they are simply American muslims with no intent to break any laws and not in any way leagued with those against whom we are fighting wars, then the connection to initiating force against the rights of others is extremely tenuous at best.

I completely agree with Dr. Peikoff in terms of our tactics and strategy in fighting the war we are engaged in, but our domestic policies--even if congress declares a state of war to exist--including property rights, do not fly out the window. Property rights are "contextual" only in the sense I have identified. If one is using their property to actually assault the rights of others--by building a bomb for instance, or conspiring to kill people--then yes, their property, like their persons and in some instances (i.e. treason), their lives, are subject to confiscation and forfeit under the established due process of law, which our republic recognizes as fundamental to the individual civil rights of all citizens. The only way in which those rights could be plausably suspended under war powers would require actual invasion and domestic warfare.

While a state of normal peace exists in the jurisdiction involved, then the laws ought to continue to operate as usual--even if the republic is fighting overseas wars. This has been our policy in every single war we have ever fought. Dr. Peikoff appeals to the founding fathers--and rightly so--but even when they faced war directly on American soil--in the Revolution and the War of 1812--they did not engage in wholesale destruction of rights. The only possible exception to this, it might be claimed, concerns the property of loyalists during the Revolution, but in that case their legal status was seen as that akin to that of traitors. But even then, they generally were not harmed in their person to the point of death, and their property only tended to be confiscated when they actively fought on the side of the British, or abandoned the country to reside (temporarily or not) in Great Britain or its loyal possessions. Even then, a number of very prominent founders--Alexander Hamilton and John Jay for instance--fought legal battles on behalf of Loyalists after the revolution seeking recompense.

The Japanese example Dr. Peikoff gives is also a false analogy. The governments of Iran and Syria are not trying to build this cultural center--if they were then I would agree with Dr. Peikoff wholeheartedly. They are, from as best I can tell, private American citizens, and are thus entitled to certain rights we would not protect in the case of the Iranian regime. Had the Japanese government tried to build anything in Hawaii, then yes of course, they would never have been permitted to do so. But, certainly, the rights of hostile governments and private American citizens are not, in any respect, the same. Also, I'm not sure why he chose to compare the Islamic cultural center to a situation that never occurred when World War II provides a far more similar example in Roosevelt's internment of private American citizens perceived by the Commander in Chief to be both potentially dangerous and potentially in danger. Here the government suspended not only property rights in time of war, but also physically confined humans with no due process of law. Dr. Peikoff's answer to the ground zero mosque situation seems far more in line with that actual historical precedent.

As to his final example, he vaguely says "someone" lobs grenades into your property, then when you flee, buys your property and builds a center to celebrate the act of throwing grenades onto the property of others. Again, I'm not sure why he chooses to resort to these non-existant and seemingly absurdist examples. Is he suggesting that the people involved in the culutral center were in league or are in league with Islamic terrorists and their international sponsors with whom we are at war? If so, his concern ought to be not with what buildings they might erect, but with why they are walking the streets free to begin with. If he's not suggesting such a literal connection, then I'm at something of a loss as to what point he's actually trying to make. A man who literally attacks you ought to be counter-attacked. Someone who aids and abetts that person is guilty also. Anyone else, even if they claim to belong to the same large religious group, must be presumed innocent until they do something to demonstrate that they are dangerous, treasonous, or otherwise unworthy of life in a free republic. I certainly have no problem if the government decides to surveil and investigate all of the people involved in this project, but until something concrete is produced, their various rights ought to be respected, even if those of us who are not muslims and disagree with all of their opinions decide they are dangerous cranks.

Governmental power is already expansive and troubling enough without advocating the suspension of normal legal procedures on American soil when the courts still operate freely and easily. And it could just as easily be turned on any other "dangerous" minority that those in power decide to persecute. I cannot advocate such power being used by the likes of those who are currently (or may in the future be) likely to use it. As much as an Islamic Cultural Center a couple blocks from where the Twin Towers once stood strikes me as insensitive, bizarre, and jerkish, I need to see something more concrete as to these specific projectors before I could countenance such state action domestically. If we're not going to try to win the war overseas we can hardly expect to succeed waging it among ourselves here at home.

Addendum.

I received a good comment, which I have pasted below. I will address it's arguments here as opposed to creating a "part three" on this issue.

"Some counter arguments that Objectivists are raising to your line of argumentation?

1) Islam is more than just a religion. It has a political/military ideology built into it the aim of which is conquest and subjugation.

2) Organized Islam is a political organization dedicated to the overthrow of the US Constitution.

3) Mosques are part of organized Islam and therefore should either be highly scrutinized or banned completely during time of war.

4) 70-80% of all North American mosques are stocked with Jihad literature originating from Saudi Arabia. Saudi Arabia is financing a world wide Jihad movement including world wide mosque construction and propaganda dissemination.

5) Islamic immigration is extremely dangerous in the context of our egalitarian Leftist multiculturalist welfare state. Large populations of Muslims in Western nations ensure that Westerners live in FEAR of Muslim violence. Google up Molly Norris and see her fate. That could easily be you one day if you say the wrong thing and the US gov't will throw you under a bus.

Read this to get a sense of the problem we are facing. Admittedly it is from a Conservative but his analysis strikes me as far more realistic than yours and other similar Objectivists:
http://www.amnation.com/vfr/archives/017461.html"

What does "more than just a religion" mean precisely? Roman Catholicism has all sorts of political and aesthetic elements, is that "more than just a religion" as well? All religions contain elements that go way beyond theories and suppositions on the origin of the universe, man, God and the like. So when one says something like "more than just a religion," what do they mean? Religions are fairly comprehensive, if fundamentally irrational, systems of thinking about the universe and living in the world. And no religion that I'm aware of can be called more anti-life than another--they all advocate abandonment of reason and living for someone else or an alternate mystical reality or both.

Conquest and subjugation are political aims that are impossible without state support, sanction, and backing. I think there is no doubt that Muslims historically and now, in certain regions, have been bent on extending their ideology through conquest and warfare. That, however, does not change the state of peace in the United States proper and the ability of the courts to function freely right now in the American republic. Until that situation changes, there is no immediate emergency to justify a suspension of the legal system. To pretend that this building project is that emergency will empower any future government to define "emergency war powers" so broadly as to seriously undermine all the freedoms and liberties we have left. I'd rather risk the minor trivialities associated with a building everyone will sneer at as opposed to creating a potentially apocalyptic legal precedent.

What is "organized Islam?" There is no such thing. There is no central hierarchy in Islam to issue commands--NONE. One reason it is so difficult to figure out where some Muslims stand is related to this fact. Parts of the Islamic community, both here and abroad, are undoubtedly in favor of overthrowing the U.S. Constitution, which I happen to think is a terrible goal. But means are an important distinquishing feature. The U.S. Constitution contains the legal method of its own overthrow. If I or anyone else worked to put it into effect--that is amend it fundamentally or call a new convention to rewrite it--would my rights be worth less then someone else's? There is a difference morally between a person who might want the U.S. Constitution altered or abandoned but who merely argues that point and does not attempt to violently affect that outcome, and a person fighting a real and deadly war to change the system with bullets and blood.

In order to broadly paint all muslims into a conspiracy to affect such an end--violently--one has to offer more proof and evidence than simply claiming something that is historically false--that Islam has ever been unified or cohesive. I cannot make this point more clearly and one only needs to read Bernard Lewis on the history of Islam (though having lived in Saudi Arabia, this is easily observable as well) to know it--Islam is not in any sense organized. Individual Imams can either be full-blown jihadists or they can expel jihadists from their congregations and cooperate with law enforcement. If you think western busts of Islamic conspiracies could have occurred without tips and assistance from muslims, you're living in a fantasy land. As a person with at least some muslim friends, I find it beyond ignorant of reality to merely assert things about a complicated situation that conflates those who actually break laws and wage wars, and those who do not. That is a real and important--fundamentally important--difference.

War time--which we're not technically in, no state of war ever being declared--does not allow the innocent to be trampled under foot, unless an actual battle is under way with an invading force. The laws of nations and the laws of war are rather clear on this for any sort of regime--but as citizens of a free republic, we ought to be even more cautious of the exercise of any powers associated with a state of war. Building a mosque, to worship peacefully, violates the rights of no one. The presence of jihadist literature from Saudi Arabia is troubling, but so was the Communist Manifesto all over the western world (it calls for international revolution). I don't know where the 70-80% figure comes from, but lets say it is perfectly accurate, in fact, lets say the true number is 100% just to make it easier. So what? What is the context? I can go buy a reader of translations of Osama bin Laden's writings and speeches right now, what does that prove? The mere presence of jihadist literature means very little.

In order to establish an actual conspiracy to commit actual acts, one needs to establish that this literature, which actually exhorts people to war in the United States, is being used by the Imam to encourage his followers to commit real crimes. But not every Imam is using jihadist lit to exhort his flock to war--or if they are they are not doing a very good job, since the numbers involved in this war are relatively very small. The fact that such literature--call it propaganda if that is more accurate--exists means what? Are we to ban literature? Why? Are we afraid of foreign propaganda? Why?

Jihadist literature from Saudi Arabia is silly nonsense, and I have not met a muslim in the United States who doesn't agree with that (though I'm sure they exist). And I don't think--I should disclose that my best friend is Persian and a muslim--that my friends are lying to my face in order to prevent me from getting to the bottom of their secret conspiratorial designs to overthrow the government. Most muslims who emigrate to the United States do so because they cannot stand the repressive societies they were born into and want to become Americans. The 9/11 hijackers were men who did not emigrate to the United States; they were born and bred in jihadist congregations in the Middle East (most in Saudi Arabia) and trained by Al Qaeda in Afghanistan before being deployed into the west to carry out their despicable mission. They are abnormal and not, in any sense, representative of anything approaching a significant portion of the muslims who come to the United States (or those who do not).

As for Saudi Arabia, having lived there for three and a half years, we need to not pretend that the Saudis are worth fearing. We live in the most powerful country in the history of the planet that can, in a moment, wipe the entire muslim world out of existence, so we need to calm down a little bit. This isn't to say there are no dangers and no threats--there certainly are both in spades--but neither is about to result in the destruction of the republic. The Kingdom of Saudi Arabia is an inept monarchy that buys domestic tranquilty through a combination of not taxing its citizenry and letting religionists have full reign in domestic governance. This has created a peculiar society that is very hands off in some respects and very oppressive in many others. But the Saudi regime is perpetually worried about its vulnerability to any number of discontents from below and foreign toppling from abroad (the main object of that latter fear is now Iran). The Saudi government is likely not behind the international dissemination of any revolutionary literature, because they are equally fearful of such activity in their own country. But the Saudi royal family is massive (tens of thousands of people) and the domestic religionists are quite powerful and quasi-independent, so I have no doubt that they are the ones disseminating propaganda. But the proper response to propaganda is to simply point out how it's wrong and move on.

As for the issuing of fatwas against American citizens, I've already indicated that I think the government should simply bomb those Imams who attempt to harm Americans into the dust. This particular Imam lives in Yemen, a bizarre vendetta non-state, so it should be very little problem. But, I fail to see how the fatwa of a Yemeni Imam translates to oppressing American citizens for his actions because they also happen to be muslims. Are they trying to carry out the fatwa? If so, then those individuals ought to be dealt with. If not, then they are as innocent as you are. There is no world-wide pan-Islamic conspiracy. Nationalism, ethinicity, secularism, and a wide variety of other schisms prevent the world's muslims from conspiring about benign things, let alone anything nefarious. This doesn't mean that radical Islamists aren't a dangerous threat, but they are not the most dangerous threat in the history of the world, and they are not unbeatable. The only thing that could ever give them victory would be our own surrender to their way of doing things. They, not we, persecute non-violent ideas and actions with violence. They, not we, condemn enitre swathes of the world to death.

As for my fate should some Imam decide to issue a fatwa against me, I'd like to see how that effort would work to be quite honest. I don't find radical Islamists scary, particularly not in my own country. I don't know why this cartoonist felt in necessary to go into hiding and alter her identity. If she though it was necessary to her survival then that is sad and troubling, but I would have suggested to her that it was not necessary. Islamic hitmen are not hiding amongst us all the time, waiting to carry out the innumerable fatwas of Yemeni psychotics. If they were, there would be far more stories about dead westerners. That being said, there are already too many stories about fatwas and dead westerners. But the solution to Yemeni Imams who threaten people is not to crack the heads of American muslims--it's to crack his head and the heads of those like him. If any American is in league with such people, there is a justice system set up to deal with their ilk. But it is important to not lose our own heads and to act contrary to principle when the situation doesn't warrant such measures. A state of war, even, requires actual fighting on the ground before the normal course of justice can be legitimately altered or suspended. Such is obviously not the case at the moment. Even in far more serious wars, our republic has been able to maintain calm and persevere, as we must do now more than ever given the intense dangers involved both at home and abroad (not the least of which emanates from the government itself).

2010-09-20T02:19:00.000-07:00

Mosque Construction in the United States of America

So I have been incredibly busy in trying to finish drafting my dissertation in time to hit the ground running in an academic position in the Fall of 2011 and not paying much beyond peripheral attention to current events. But I have seen that one of the stories taking prominence among Objectivists and the country at large is the question of mosque construction near the site where the World Trade Center Towers once stood in lower Manhattan. Two questions are at play in this story as I see it; the first is whether or not people in the United States have the right to construct buildings where they propagate their belief systems (I would add on land that they own, but there are no private land owners in Manhattan--which is an abomination but a subject for another day--the New York City Port Authority owns all of Manhattan) in Manhattan; if the answer is yes--and I will argue that it is--then the next question is whether or not these particular Muslims could, in good faith, really think the construction of Islamic Cultural Center is really in the best of taste so close to such a site only a decade after the worst massacre on American soil since the nineteenth century.

As to the first question. If American Muslims cannot build mosque's in the United States then no mystical religionists ought to be allowed to construct any places of worship. Islam is no more inherently violent than Christianity or Judaism--both of which were at points in their past followed by incredibly violent fanatics. Read about the first crusade and then tell me that you want Catholics building churches near you. Of course, we live in the present, not the 11th-12th centuries. But no matter how many crazy fanatics who exist in the world trying to consistently apply their war-like understanding of jihad to us, we live in a society of individual rights. We do not condemn followers of Islam who, like followers of nearly every other organized religion in the world, are inconsistent hypocrites and live normal non-offensive lives as law-abiding citizens of our republic. We condemn those who actually do, or conspire to do, actual wrong. If the people investing in this particular cultural center are criminals or plotting criminal activity or worse, conspiring with our enemies overseas, then sure, investigate them, arrest them, prosecute them, and toss them in jail. But to condemn them before that and disallow their rights to lease land and construct their own private buildings upon it is absurd.

Having lived in an Islamic country--and one of the most fanatical--for three and a half years, I don't have any especial sympathy for Islam as a belief system. It is built entirely upon the principal of submission and sacrifice of oneself to the community and to God. But that is hardly unique. It was spread through conquest initially, but once Islamic armies ran into actual resistance they became the conquered and converted people as Christians do--proselytizing them. Since there is not central command of interpretation in Islamic culture, individual Imams have a tremendous amount of power. When they abuse that to issue death threats against enemies of the faith, they are merely reenacting Urban II's call for the first crusade in 1095. For that they ought to be condemned, and if such fatwas are ever perceived as actual threats on our security or that of our citizens, then I have no problem with my government killing barbaric mystics. But a war against overseas opponents, who are Muslims and who act from an ideology built around the teachings of Islam, does not translate to outlawing mosques in the United States. When Washington told the Hebrew Congregation in Newport, Rhode Island that "All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoke of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support," he wasn't trying to secure Jewish support politically--they were a small minority and he was unassailable politically. He was attempting to describe why Americans had a "right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation." Now where in the world do governments prevent zany, bizarre, or even potentially dangerous religious weirdos from building their own places of congregation and worship? It is not the United States, nor should it ever be. Good god, even the CPUSA was permitted to peacefully propagate an ideology explicitly devoted to the destruction of the government and individual rights and that was actually allied with a massive murderous totalitarian regime which was also our greatest enemy for over forty years.

Now, the other question about propriety. I happen to think it's probably not the best idea in the world to select that particular location in Manhattan to build a cultural center for the same culture of those who butchered thousands of innocents down the street ten years ago. Was there a Japanese cultural center built at Pearl Harbor in 1951? A German cultural center in Warsaw in 1949? Of course not. But if people had wanted to build them, pay for them, and use them, I would not have opposed their right to do so. I sympathize with those that see this proposed construction as an affront--especially when you consider post-Al Ghazali Islamic culture has nothing much to be proud of intellectually--but there is nothing that can be done short of buying them out or boycotting the facility. Besides, if it turns out that this cultural center is run by and visited by perfectly loyal American Muslims, then it will be no different than any other house of irrational whims that litter the American landscape.

2010-07-28T15:04:00.000-07:00

On filibustering

As a historian I might be thought to be writing on unauthorized 19th century military expeditions of rowdy and bombastic cowboys and freebooters, but I'm actually writing on boring Senate procedural filibustering. The Senate Filibuster used to be a real show. A Senator would have to talk--literally--without pause to hold up Senate business, thus waiting for the other Senators to retire so that a quorum to continue was lost or enouch of the opposition left the chamber to tip the scales of the vote to be taken on a dreaded bill. Of course the last famous filibusters of this style well deployed against Civil Rights reforms in the 1960s and the procedural quirk of the Senate was subsequently reformed to save Senators the trouble of having to speak for hours on end. The result is the current system whereby an indivdual Senator announces their intention to filibuster whereby the Senate simply stalls until 60 of his fellows vote to proceed, getting all the benefits of an old style filibuster without any of the accompanying pain and theatrics.

Of course, a party in minority, particularly the current uncharacteristically small minority Republicans in the Senate have (41) will wish to use this, its only real check on the majority, as often as they feel they must when it seems unlikely that enough of their opponents will defect. As the Senate was designed without the idea that it would be the realm of two institutionalized and entrenched parties that would also exist in the House of Representatives (not to mention without the notion that it would directly represent the people), the filibuster rule of the Senate has been a useful and appropriate innovation to retain the spirit of the original expectation that the Senate would be a check on the lower house and more slow and deliberative in the legislative process. Unfortunately, frustrated Democrats in the blogosphere are displeased with the "slow" pace of "change" currently coming out of the U.S. Congress and they have set their sights on the filibuster as the prime culprit. Of course, when Democrats were in the minority, the filibuster was a tool they employed often enough, but now, some claim, Republicans have abused the process.

Another quirk in this situation is that the Senate, under normal circumstances, cannot change its rules except through the vote of a super majority of two thirds--except at the beginning of a new session where the body only needs a simple majority or a tie with Biden's tie-break vote to change the rules. As long as they take on no other business before the rule changes, a simple majority can change all the rules if they desire it. The idea is that if they proceed to other business then the "new" Senate implicitly accepts all of the "old" Senate's rules and therefore must accept the super majority rule for amending. One thing I'm not clear on about how this works is how one accounts for the senate ever being old or new given that two-thirds of that body is always in office, unlike the House which actually can be completely new every two years.

Part of this is sour grapes. When out of power, both parties use the filibuster to prevent things they don't like and cannot possibly defeat in any other way. And both parties, when in power, bemoan the use of the filibuster by the other side. So some of this is just silly unreflective partisan nonsense. But some of this is a realization in the part of radicals that the filibuster is, inherently, a conservative tool, preventing all change of the status quo no matter if defined as good or bad. As such, it can and always will be deployed against reform in any direction. Liberals would deploy the filibuster against deregulation, legislative repeals, and all manner of "reform" they clearly do not like. Conservatives have acted likewise. But when you have a 57 Senator majority, plus two caucusing independents, it is understandable that true believers get frustrated that the minority can so easily gum up the works. But given the scope of any "reform" and the ramifications it might have, it is still somewhat mind-boggling that on the verge of massive electoral reverses the Democrats and their most radical supporters would urge the destruction of what may one day soon be their only means of halting "reforms" they do not support.

Range of the moment thinking is often characterized by the complete absence of long-term thinking. It is all around us, but no more pathetically than in a national political leadership that runs trillion dollar annual deficits without blushing. By advocating a rule change by which to silence their opponents, radicals on the left may actually be enabling their opponents to easily ignore their shrieks of protest in the future when they aren't in the majority. So while I oppose such a rule change as essentially dangerous to minority rights, I will not feel sorry for lefties when this one--if they manage to pass it--comes back to bite them in the ass.

2010-07-22T13:43:00.001-07:00

In Defense of the Atom Bomb

If you have not already seen the trailers for “Countdown to Zero,” get ready, because after being dormant for over twenty years, the no nukes/nuclear freeze nuts are back with a vengeance. The same charlatans who brought us “An Inconvenient Truth” to convince us that mega-Hurricanes were about to swamp the United States in a mega-hot post-Katrina world. Remember that? Ok, even scientists can make mistakes, and that is the ultimate point of this new “documentary,” they made a huge one when they weaponized the power of nuclear fission, and then later nuclear fusion. Now we are to be dictated to by the likes of Jimmy Carter and Pervez Musharraf about bringing the total global number of nuclear weapons to zero. It is one of the most breathtaking examples of foolishness presented seriously I have seen in some time.

Nuclear weapons are alarming and breath-taking in their destructive capacity. It is possible to envision building enough of them to, if used, wipe out most of human civilization and make subsequent life on earth extremely difficult for the survivors. For Hollywood directors this idea presents interesting avenues for action/science fiction movies. For simpletons it is an alarming and realistic prospect. But nuclear weapons are the single greatest factor in preventing the second sequel to World War I and all other major wars in the period after their use at the end of World War II. War on a major scale between nuclear powers is inconceivable to all people involved, because winning seems completely impossible. Or if it is technically possible, it presents the most Pyrrhic of Pyrrhic victories. And so, after the bloodiest opening of any century in human history, the second half of the twentieth century was one dominated by wars in the third world that, while deadly and destructive, did not threaten to bring war between countries most capable of destroying the progress of civilized man.

That genie is irreversibly out of the bottle, for better or worse. It is not possible to dial back the clock. Nuclear power offers great enormous potential to generate cheap efficient power with rather minimal risks, and its development brings along the possibility of weaponization. That’s simply a fact of reality. Nuclear weapons are alarming in the hands of despots and psychotic criminal terrorists around the world, and that specific issue is worthy of combat, but disarming the United States of its defensive nuclear arsenal is criminal at best. No hostile forces and regimes around the world are ever going to listen to Jimmy Carter’s pathetic appeals to give up nuclear weapons. Just as criminals do not follow the law in acquiring illegal weapons, the world’s worst people will not break their designs for one minute even if the United States were to toss all of its nuclear weapons in the ocean tomorrow. We’ll be infinitely less safe, our allies will be infinitely less safe, and for what? The notion that it is possible or desirable to re-enter the pre-1945 world is horrifically nonsensical. The best that can be said for those who would seriously advocate that nuclear weapons be destroyed is that they are woefully disconnected from the reality of world affairs and human nature, not to mention all of human history. I will leave the worst that can be said for them to private utterance.

On a separate note I have just learned that cap and trade is dead for this legislative session: Huzzah!

2010-07-17T07:21:00.001-07:00

Check out a new post on Thomas Jefferson on the early republic blog and get involved in the discussion!

2010-07-10T11:30:00.000-07:00

Why I’ll Never Be Confirmed to the Supreme Court

John Paul Stevens is out, Elena Kagan is about to be in. The Supreme Court of the United States, the pinnacle of the third branch of the government, is about to welcome aboard its 112th member and President Obama’s second addition to the court after Sonia Sotomayor. Elena Kagan kicked off her Senate confirmation hearings by pledging “modesty” in her future career as a member of our country’s most august court. Therein lies the problem in my theoretical confirmation to the Supreme Court (based on the extremely dubious assumption that I could be or would be nominated by some future President). A Supreme Court Justice should be many things, but modest is not one of them.

Modesty, as Justice-to-be Kagan employs the word, means deference to the legislative and executive branches in their making of law. In Kagan’s world, that simply means bending the Constitution over backwards to allow unconstitutional laws to skate by the fundamental supreme law of the land. To her would-be opponents in the Senate, Mitch McConnell’s hapless band of Republicans, modesty is a good thing since it means no “legislating from the bench” and therefore none of those annoying judicial decisions against gay marriage bans or abortion restrictions. In either guise, “modesty” from a Supreme Court Justice is improper. Instead of being that which is always and ought to be said in these confirmation hearing, modesty should be relegated to the “list” of words that gets one “Borked” right out of the room. [By the way, just so there is no confusion, Robert Bork was a terrible nominee who was rightly rejected—or “Borked.”]

What would Supreme Court Nominee Alexander Marriott say in his confirmation hearings about his judicial outlook and philosophy? I would approach such a job offer in the following manner, from most specific to most general: 1) the role precedent or stare decisis should play for a Supreme Court Justice, 2) the role of Supreme Court Justice qua the rest of the government in our republican system, 3) the Proper method of interpreting the constitution, and 4) the proper role of the Federal Government in relation to individuals and the States:

The role precedent or stare decisis should play for a Supreme Court Justice
Judges of inferior courts should be extremely hesitant about ruling against the decisions of higher courts, particularly the Supreme Court of the United States. It is in this sense that the principle of stare decisis makes the most sense for a rational judiciary. There are two primary reasons for this: 1) in inferior courts there is still a higher court to appeal any decision to and 2) stability in the law is important to maintaining respect for the law and stability in society. BUT, for a Supreme Court Justice, it is doubly important to be independent from the tyranny of erroneous reasoning of prior Supreme Court decisions. Prior Supreme Court precedents are not to be taken lightly, but those that do not conform to higher principles discussed below are not entitled to unlimited respect as final or definitive.

The role of Supreme Court Justice qua the rest of the government in our republican system
A Supreme Court Justice is but one member of the highest court in the United States and thus has a part in crafting the final word on all constitutional legal matters. This includes the ability to check the legislative and executive branches by voiding federal laws which violate the Constitution. The Chief Justice also participates in the checking of the executive branch by presiding over impeachment trials of President by the Senate. A Justice of the Supreme Court ought not to assume an unseemly deference to congressmen or Presidents because the former were elected by the people. Every Supreme Court Justice is appointed by the one officer of the government elected by all of the people and confirmed by the people’s representatives in the U.S. Senate. This indirect method of gaining their positions is appropriate and legally prescribed by the very Constitution they swear oaths to uphold. They perform an equally vital and indispensable function in the government with the other two branches and should not grovel. An independent and strong judiciary is essential to the freedom and well-being of the republic. The judiciary can only be as independent and strong as each of its individual members. Any actual abuses, true deviations from the application of the laws, or gross violations of laws or incompetence, all of these are just causes for removal and the constitution provides the remedy to the people’s most immediate and direct part of the government, Congress.

The Proper method of interpreting the constitution
The first standard of judging of the Constitution is the Constitution itself. Treaties are supreme to all other law as well, but as it would be an absurd conceit to place Treaties on par, let alone above, the Constitution, they must have a subordinate role to the Constitution. Following Madison’s advice, the next most “authentic” set of sources for expounding on and interpreting the charter are the records of the ratifying conventions that made the Constitution an operative and real government, and not just an idea written on paper. Next are the contemporaneous debates and statements on the Constitution by its supports and detractors during the ratification period. Next are the precedents established during the first several years of the government’s operations. Finally there is the body of Supreme Court constitutional case law. The only other sources of law that can be properly admitted into discussions of fundamental American law are those that existed prior to the Constitution. Thus the Declaration of Independence is a relevant source of American jurisprudence, while the common law of Great Britain is not (as Marshall decided during the Burr treason trial). International law has bearing through treaties and through informal usage and acceptance, but it cannot be superior to the Constitution in an American court of law—any American court of law.

The proper role of the Federal Government in relation to individuals and the States
The Federal Government was formed for specific reasons and was thus granted specific powers. The Constitution neither creates an unlimited leviathan nor a wimpy league of sovereign and independent states. It acts directly upon the individual citizens of the United States and is supreme in everything it does. The States have residual powers and rights, not delegated to the federal government, over issues of local prerogative as the state constitutions establish for themselves. But they are enjoined, in the Constitution, against doing a whole host of things, principally those things that the federal government is specifically empowered to do. They have no rights or powers to interfere in the enforcement of federal laws. The states are also not to withdraw from the general government under any pretext of legality. As for individuals, the language of the Constitution and the undeniable weight of all other varieties of evidence and documentation, suggest that their rights are the primary reason the government was established. In order to make that even more obvious, almost every amendment made to the Constitution relates to some province of individual rights and freedom that the government may not—explicitly—intrude upon, lest there be some misunderstanding in the foregoing articles. But the rights of individuals are not derived from the Constitution—a fact that the document explicitly recognizes—they are inherent in the nature of man. They cannot violate each other (thus there cannot be a right to life and liberty and also a right to own slaves or a right to the product’s of another’s labor) and they are the reason government’s are established—to preserve and protect these rights. Any Justice should boldly proclaim this and proudly recognize that the document they swear oaths to is the product of a nearly unprecedented and almost entirely unduplicated effort to create a government strong enough to survive but controlled and circumscribed enough to not squash the very rights it was called into being to protect. The fact that it remains in operation more than two centuries later through some of histories greatest conflicts and disasters is nothing short of wondrous. The fact that prospective Justice Kagan could not even affirm some sort of doctrine of natural rights is a sad and appalling sign of the state of the legal profession.

And so, now that I have publicly staked out such firm positions, I am further doomed should some misguided soul ever appoint me to the Supreme Court of the United States. But unlike Elena Kagan, I would never make fun of the non-informative and shallow nomination hearing process and then play right into that same process once nominated. I would, if nominated, answer candidly and honestly all questions asked of me. If it meant not being confirmed to the court, so be it. No prospective Justice should be so desirous of power as to adopt a policy of answering and at the same time not answering the questions of the Senate. And the Senators should not make honest answers, within a reasonable range of judicial and political disagreement (for instance, it is absurd to vote down a prospective justice because you happen to disagree on tariff policy while voting down a communist or fascist jurist would be most appropriate), grounds for denial. Such an attitude merely encourages and fosters the shallow, uninformative, and boring confirmation hearing process that now dominates.

2010-06-27T06:17:00.000-07:00

Immigration: A Problem in Need of Principle Application

Some issues currently before the American people as "problems" befuddle me. Abortion, gay marriage, drugs. How and why people get exorcized over these issues is sometimes frustratingly unfathomable to me. I remind myself that people who see these as issues of high priority--as issues at all of any priority--are operating under a completely different set of premises and values than I, but this is often an unsatisfactory anodyne to what ails me.

Immigration is just such an issue. So much vitriol, so much bluster, so much money! And for what precisely? What are the principles motivating those so upset over immigration? That immigrants use things once they get here? That some immigrants commit crimes? That the immigrants capable of getting around the obtuse and illogical legal immigration system do so? These aren't principles so much as gripes.

Every country has a right and duty to defend its geographical political integrity--from external political threats. But from private immigrants? This is issue number one. So there are no invading armies crowding the borders of the republic, but what about criminals? The government must honor all extradition treaty obligations with legitimate governments. If fugitives from other countries seek safety in our bosom they ought to be expelled back the justice awaiting them. What about those who committed crimes but served their sentences? This is a matter where I think there is some legitimate issue for debate. Other countries around the world have bizarre and unjust criminal codes that condemn people for non-crimes while other countries let murderers out of jail after absurdly short periods of time (i.e. at all). I think a case by case approach should be applied for tough questionable cases. I do not think it unreasonable to bar those previously convicted of murder, rape, and larceny past some set value of stolen property. Those who commit crimes here before attaining citizenship ought either to be dealt with under our justice system, sentenced, then deported (if their crime is not serious enough to warrant a life sentence or the death penalty), or, if a minor felony, simply deported back to their country of origin providing that that is not a death sentence.

What about employment “theft” and the use of hospital emergency rooms and state welfare aid? These are "issues" only insofar as someone cares about maintaining state economic interventions and welfare programs. There is no way to avoid paying some form of tax in almost every state in the Union, so the idea that even the most illegal of immigrants is paying no taxes is a canard. Now, they might not be paying as much as a native citizen of the republic in the same position, but it seems to me that if one has a problem with that state of affairs then the immigrant is not the direction in which to direct one's ire, but the laws that make such a situation possible.

Jobs, outside of the government, are the creation of employers. They are not public goods or commodities, but are privately held and offered. The labor market in this country is, in principle, a free one. That being said, it is heavily regulated. There is a well known price floor in place in the market for labor, more commonly referred to as the minimum wage. Like every other market with price floors and ceilings set to levels above or below the market equilibrium of supply and demand, buyers and sellers will sometimes ignore the rules to conduct business that is mutually beneficial and not harmful, yet illegal. Immigrants, often reared in societies far less abundant than ours, are often capable of living far more economically than native Americans and are willing and able to offer their labor at rates below those of many other people. Like most competitors today who find themselves in a position demanding a choice--change or fail--many Americans competing with immigrants, particularly illegal ones, strike out for a third option. Simply, proscribe the competition.

Think of the labor market in the same way you would about any other market, except in this market, the collusion which is squashed by anti-trust laws in nearly all other markets is encouraged in the form of Union protections. Direct price controls are frowned upon in nearly all markets except for labor where price floors exist nearly everywhere (and price ceilings are sometimes discussed and proposed quite seriously). The American Republic has often been committed to protectionism of its domestic markets in a wide variety of manufactured items. And so it has been of its labor. It's not the result of a host of seedy behind-closed-doors lobbying activity, but the dangerous democratic rumblings of the vox populi.

But for those who claim to only care about security, how do we secure ourselves from criminals and terrorists from abroad or at our borders? Criminals and terrorists are always going to try to do things either patently illegally or attempt to pretend lawful behavior to avoid suspicion. This is always the case and it is not what characterizes the vast majority of immigrants historically or currently. We spend vast sums of money to set up systems and employ our fellow citizens to prevent these two small classes of people from entering the country and wrecking havoc. But those systems and fellow citizens not only having to hunt down the criminals and terrorists over a vast border, they have to do it amidst a much larger population of people technically breaking the law to immigrate to the United States for just and upright reasons. Why? Because of the current harebrained scheme of national quotas and visas that penalizes everyone. Does it even have the redeeming feature of keeping criminals and terrorists out? No. The quotas and visas are irrelevant to criminals and terrorists who simply ignore these laws along with every other law that gets in their way. Or they will comply to a point to avoid harassment ala the 9/11 hijackers.

The national quota and worker/student visa system should be abolished. It serves no legitimate end. Immigrants coming from afar will have to enter through sea ports or air ports and are subject to old-fashioned methods of making sure they are who they claim to be and/or not infected with horrible contagions. Without a quota and visa system, the current mess on the Mexican border should almost entirely evaporate as far as concerns people interested in making an honest living go. It’s far safer, cheaper, and easier to enter a known border crossing to undergo an identification confirmation and medical examination than to hike through the desert with hardcore criminals. As for the criminals, they will suddenly find themselves as isolated figures in the desert easy to handle for the resources already appropriated for the purpose. No more endless sea of humanity to hide in. The key is to not drive honest decent people into the arms of rapacious unsavory criminals in order to achieve non-objectionable ends. No citizen of the United States has any right to interpose themselves between prospective employers and employees except in a case where someone's legitimate individual rights are violated.

If U.S. citizens wish to complain that their welfare systems cost too much money because people use them (shocking that free money offered to people sometimes gets grabbed) then they should reconsider why they have such programs in place to begin with. They are objecting to behavior. There can only be two reasons: 1) They don't like the idea of people getting handouts, in which case, they should work on getting rid of the government handout system; or 2) They don't like the particular person getting the handout. The first complaint is based on a principle, the second is not.

So it's clear that I think the hullabaloo surrounding immigration is a lot of confused, prejudicial, muddled nonsense. But naturalization of immigrants is a legitimate province of the government. The government and the republic broadly ought not to encourage or foster a dangerous pluralism. What do I mean by that? The republic always has and should continue to encourage the immigration of those who want to make a new start; those who want asylum from tyranny; those who want to take the opportunities and responsibilities of freedom by the horns and succeed. It has never been the policy of the republic to encourage the immigration of monarchists, aristocrats, criminals, communists, or anyone else not supportive of human liberty and dedicated to the principles of individual liberty from which the republic was born. It is a very mild restriction, but one the republic should hold to very firmly.

E pluribus unum is our motto for a reason. American pluralism is a wondrous achievement and we bask rightly in our incredible variety as a people, but when it comes to the truly important fundamentals of our political creed and our unity as a people, we have been and must be together. Not as a collective mass without thought--never that. But we can be united in our devotion to the liberty and freedom the revolution was fought for and which has been reaffirmed in blood numerous times ever since. United around our constitution, that stolid, rarely changing yet alive and breathing and real document. United around each other because now, as always, Franklin's injunction that we must all hang together or assuredly hang separately is absolutely true. And united around our ability to absorb--happily absorb--those who see our society, our example, and want in. Those around the world staring at the United States of America on small television screens, or hearing about it on crackling radios, or being told about it around a campfire under starry skies. To all those aspiring people wishing to escape poverty, wishing to help family and friends, wishing to achieve that which would be impossible anyplace else--anytime else--it is to this republic they have always flocked and continue to flock to even in this troubled age. A goal, a dream, a vision--by the millions, people bring them to our shores. Few lands in history could ever claim to be a land of immigrants. It's not an accident. Immigration requires a maximum effort. There has to be a reason to leave and there has to be a reason to go to a particular place. It's always easier to stay put. And yet to us they come, from all over. We must open ourselves to them while maintaining our republican way of life. Becoming a walled camp, worrying about which particular people are getting handouts, and blaming our employment woes on others is not us. That sort of thinking is not America at its best. When an immigrant risks everything to come here, it is not a small, insulated, petty country he holds before him. Nor should it ever be.

To that end I propose the following amendment to our constitution.

PROPOSED IMMIGRATION AMENDMENT to the Constitution of the United States

Section One. All foreign aliens, unless convicted of crimes to be defined by the Congress of the United States, or infected by such illnesses as shall be defined by the Congress of the United States, shall not be prohibited from entering the United States or its territories and remaining indefinitely unless said foreign alien commits a felony against a Federal law or a law of the several States;

Section Two. All foreign aliens not otherwise excluded by prior criminal activity in the United States or its territories, or by prior criminal activity in their countries of origin, the extent of which shall be defined by the Congress of the United States, shall be naturalized citizens of the United States in pursuance of the following;

Section Three. All foreign aliens wishing to become citizens of the United States shall, continuously, reside in the United States or its territories for a period not less than ten years;

Section Four. All foreign aliens wishing to become citizens of the United States shall declare their intention of becoming a citizen by swearing to and signing an oath, publicly witnessed by at least two officers of government, State or Federal. No foreign alien shall become a citizen until this oath is sworn and signed. The oath shall be: "I swear that I shall always uphold and protect the Constitution of the United States and its republican form of government. I swear I shall always affirm and protect the individual rights of all citizens of this republic. I swear by my life and all that I hold dear, that I shall never levy war against this republic. Never will I swear allegiance to any foreign prince, potentate, or people against this republic. I swear that so long as I am a citizen of this republic I will maintain, with my life if necessary, its laws and its liberties;"

Section Five. Any foreign alien wishing to become a citizen of the United States cannot do so by contracting a state of marriage with a citizen of the United States;

Section Six. Foreign aliens, whether seeking citizenship or not, who have children in the United States, shall not become citizens. All children of foreign aliens born in the United States or its territories will be citizens of the United States and enjoy all the rights and privileges guaranteed to the same;

Section Seven. Congress shall make no law restricting foreign aliens of any nation from immigrating to the United States or its territories, nor shall it harass foreign aliens from any nation, seeking citizenship or not, unless the United States are at war with said nation, and only so long as a state of war exists shall this prohibition be ignored;

Section Eight. All Federal laws concerning naturalization and immigration passed prior to the adoption of this amendment shall be void. All foreign aliens in the United States or its territories at the time this amendment is adopted shall be eligible for citizenship under the provisions of this amendment retroactively regardless of their prior compliance with the previous, now void, naturalization and immigration laws;

Section Nine. Congress shall make all laws necessary and proper for carrying the foregoing powers, provisions, and proscriptions into effect immediately.

2010-06-18T04:34:00.000-07:00

Blog of the Early Republic Redux!

I have redesigned and recommenced operating my other blog, The Blog of the Early Republic, a link to which you can find on the right as well as in the link provided in this message. I will be updating both blogs on a weekly to bi-weekly basis from now on, so stay tuned for what I hope is some interesting content. That is all.