Archives for category: Constitutional Concerns

img_3595-1One of the reasons I refused to vote for Trump: the fear that he would escalate the War on Drugs as well as the much-less ballyhooed (but perhaps even more pernicious) War on Property. And now it has begun in earnest.

“U.S. Attorney General Jeff Sessions threatens to make himself one of the biggest threats to your liberty,” writes Paul Jacob. “President Donald Trump’s pick for Attorney General just promised to encourage police departments to seize the personal property (cars, houses, cash) of criminal suspects.”

IMG_3918And the new Attorney General has delivered. Sessions has rolled out his new policy, claiming that “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that,” Sessions said. “We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”

But the vast majority of civil asset forfeitures are directed against people who have never been charged with a crime.

It is normal Americans who have been “hit in the wallet.” Besides, as Paul Jacob put it, “No one is a criminal, before the law, until proved in court. Taking away property to make it harder for suspects to defend themselves — which is what RICO laws and other Drug War reforms intended to do — is obviously contrary to the letter of the Fourth and Fifth Amendments as well as the spirit of the U.S. Constitution.”

This is a complete return to police state practices, an amazing flouting of the rule of law, an affront to both liberal civilization and conservative caution.

The fact that our police and local governments engage in any practice that confiscates property without trial is so egregious it is hard to know where to begin.

Though Trump’s AG, Jeff Sessions, is the one advancing this practice, it is worth noting that Obama’s first AG, Eric Holder, demonstrated his sole restraint in a minor pulling back from “adoption,” the not-very-common process of taking over confiscation prerogatives from state and local governments. Reason’s C. J. Ciamarella explains that politic jurisdictional finagling pretty well . . . and the “logic” of the share-out spoils system, too: “Law enforcement groups say asset forfeiture is a vital tool to combat drug trafficking and other organized crime, and they argue the equitable sharing program provides essential funding for police equipment. The body armor used by police at the Pulse nightclub shooting in Orlando, one attendee at Wednesday’s meeting noted, was bought using equitable sharing funds.”

I have a cheaper, more Constitutional solution that may very well have prevented the extraordinarily high Pulse body count: allow nightclub (and other public business) personnel to conceal carry the weapons needed to take down mad jihadists. That is, reëstablish gun rights everywhere — definitely not rely upon militarized police phalanxes.

We have every reason to be disgusted with Sessions and Trump. But let us not forget that the Obama Administration was actually quite bad on this, too — as it was on so much else. Over the last ten years $3.2 billion in assets were confiscated from people not even charged with a crime.

Think about it, then ask yourself: what would Thomas Jefferson do?

One thing, he wouldn’t be voting Democrat or Republican.

Jefferson started a new party over a similarly insane and unconstitutional federal government practice.

What shall it be, then? A “Liberal Whig” Party? A Responsibilitarian Party? The Receivership?

twv

N.B. Image of Sessions is by James Gill and has been nabbed from Paul Jacob’s Common Sense site. Below is a screenshot of a post by one of my pro-Trump friends on Facebook:

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On my old hand-scripted blog Wirkman Netizen — now decommissioned — I wrote a longish post  about the slogans “Taxation Is Theft!” and “Taxation Is Robbery!” and took the contrary-to-my-comrades position. Since the main essay is offline, I guess I should repost it, here. My points are somewhat technical, but my aim is practical. Which might make it hard to categorize.

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Taxation Is Not Theft

Libertarians are too fond of slogans such as “Taxation is Theft” and “Taxation is Robbery.” They get quite a charge out of such maxims. And, with these maxims, they do manage to get a good idea across to some people, people who come to see that taxation is, indeed, a form of expropriation, and that it is analogous to forms of theft such as robbery, and that maybe we can do better.

Perhaps we can pay for public goods without engaging in extortion and expropriation.

But to people who really want those public goods, and who are capable of elementary distinctions in language, they are not convinced by these slogans. They are put off by them.

And they have good reason to be. Taxation is not theft. Not really.

Taxation is the expropriation of private property according to an established rate, as put into law by an established state.

Robbery and other forms of theft are illegal kinds of expropriation, and piecemeal at that. Taxation is a legal kind of expropriation.

To many libertarians, this distinction is not much of a distinction at all. They have pretty much thrown out the distinctions between legal and illegal, and are in a continual revolutionary mode of thinking, ready at a moment’s notice to throw out whole chunks of the rule of law and state practice.

So of course they equate all kinds of expropriation.

Well, not all, since libertarians do support some forms of expropriation. They have no trouble expropriating the loot of thieves from thieves, after court adjudication. And they have no trouble expropriating from a person found liable, in court, to a tort claim.

They just don’t support taxation.

My Contention: The main reason radical libertarians will not get anywhere is their complete lack of understanding of the normal mindset, which is not constantly in revolutionary mode. Radical libertarians who trot out slogans such as “taxation is theft” do not address the respect a non-revolutionary has for the rule of law.

Indeed, because of this revolutionary stance — and I’m not talking about physical, bloody revolution so much as a particular stance regarding ideas and consent — these libertarians cannot deal with normal folk.

They offend normal folk; libertarians often (and with good reason) strike normal citizens as lunatics, perhaps dangerous lunatics.

This is one reason why I choose my words more carefully — or at least differently— than radical libertarians. I wish to address normal folk in normal language. I believe it is incumbent upon me to make every step towards a revolutionary mindset clear. I wish to pull no wool over any eye. I believe we have to approach greater liberty with complete honesty. No rhetorical trickery.

And I regard slogans such as “taxation is theft” as something close to rhetorical trickery.

It may be that we will someday be able to support all worthy public projects without any taxation.

But however we manage to do this (and I’ve lots of ideas, not limited to simple slogans like “the market will take care of it”), it will have to be done within the framework of the rule of law.

And people in such a future society will have to regard the means used at that time in something other than constant revolutionary mode. Even if they can think of better ways, they will have to show some respect for the rule of law of the day.

As libertarians, by and large, do today. Most pay their taxes, if grudgingly. They are revolutionists only in speech.

Hypocrisy? Not really. But, as I’ve argued before, if it is, then this kind of hypocrisy is better than stupid, feckless revolt, or the sad parade of individualist martyrdom.

This all came to mind in the debate I mentioned on David Friedman’s Ideas blog. Writing on No Treason, John T. Kennedy has this to say about the debate:

In a comment to Friedman I point out that he has called taxation robbery and robbery is widely considered unattractive and indefensible. Does this mean that in using the word “robbery” Friedman dishonestly mischaracterized the motivations of all who support taxation? No, he correctly characterized the act of slavery.

I must add some precision here: Expropriation is not an act of slavery, but merely that, the taking of property. Slavery is the most extreme type of expropriation, perhaps, being the theft of one’s autonomy and practical ability to choose and move about, and ability to hold property justly acquired (or not). But slavery, the most extreme crime against liberty (just as murder is the most extreme crime against life), is only by analogy an act of theft.

Further, if Friedman has used the phrase “taxation is robbery,” he may indeed have erred. Not so much in terms of dishonesty, but in missing a whole element of society that most non-revolutionaries accept without much thought, but which libertarians too often rule out of consideration, give little or no thought to.

So, what is taxation again? Taxation is like theft, in that it is expropriation. But the state is not “just like a group of robbers and bandits.” It is distinct. It gains the general, practicing consent of the bulk of the populace. Most citizens of modern states remain unable to see how they can manage without the state, and many, perhaps most, treat it as a major source of their own well-being.

This makes a difference. Why? Intentions do make a difference. They add a level of meaning to interaction.

To call the state, either pointedly or by implication, nothing better a group of bandits, is to misunderstand it, first, and to antagonize its supporters, second. The “taxation is theft” mantra does more than just imply that “the state is a robber band.” Why? Because everyone knows that the power of the state comes from taxation. That is the basic power, the foundation of the rest. That is why, in fact, one of the basic powers that the colonials wished for their states, in union as well as separate, when they seceded from Britain in 1776, was the power (indeed, right) to tax.

How much better to avoid the mantra, and say something like this: “Yes, too often, the state does behave like bandits; too often its very mode of existence encourages a banditry ethos in society, making us all worse off through internecine expropriation and conflict.” By toning down the language of invective a bit, we go back to simile and revert from bold metaphor treated as stark, unliterary truth.

After all, “Taxation is theft” is a metaphor. It is not a logical identity. To presume such is to engage in a philosophical error, and to misunderstand a crucial element of normativity in society.

Libertarians will not succeed until this error is consistently avoided, and a more reasonable dialectic becomes dominant in the movement — that is, a more reasonable and nuanced way of dealing with those people whom libertarians say they want to convince.

twv

Links

This has appeared twice on the Net before, at wirkman.net and wirkman.com [dead links]

Brian Doherty discussed it briefly on Reason’s Hit and Run.

I discussed it on video, in my usual semi-coherent fashion, here:

And last year I discussed this essay, quoting it in part, here: “Taxation Is…

usmapAs I often contemplate, these days, the dissolution of these United States into their several units, and their subsequent accession into new unions and (perhaps) a new union of unions (putting, of course, the current federal republic into receivership), the future complexion of these states — and the distribution of their separate unions — often weighs upon my mind.

The most obvious map would reflect “blue” and “red” state differences. But perhaps the country should be re-arranged on more cultural, less political, grounds.

Like this. The separate unions would be Soda States of America, Pop States of America, and Coke States of America, etc.

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Yes, this is mere whimsy.

twv

A late, lamented neighbor of mine once defined “just war” as “mere war.” That was a quip.

A rather cynical one.

When I read just war theory, as a teenager, the most important point, I determined (in this rarefied and rarely consulted domain of thought), was this:

In contemplating intervention into a conflict with which one’s own country is not directly involved, it is not enough merely to determine which side is more nearly in the right. One must also have good reason to believe that, by intervening, one’s State could win and establish a stable and  just peace.

Even if you know who is in the wrong, if there is no likely way of “winning,” or if one’s intervention is not likely efficacious to establish a peace, entering into the conflict is immoral.

A recent study of just war theory and history by Laurie Calhoun suggests that most uses of the tradition, especially in recent times, have been to cover for gross, murderous immorality. Not to limit warfare.

As near as I can make out, this is largely because the tradition is almost never treated seriously or rigorously in the manner indicated above.

It is telling that I have not once heard, in recent public discussion over the Syrian intervention, one mention of just war theory.

twv


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Less than a week after Trump’s wiretapping charge, the new WikiLeaks exposure hit — which detailed the vast abilities and routine practice of the CIA to intercept phone calls and audio- and video-chats, as well as hijack laptops, tablets, smart TVs, smartphones and automobile computers — but almost no who had started out ridiculing Trump let up. Astounding.

Now, Dennis Kucinich brings not irrelevant testimony that should squash the ridicule. “I can vouch for the fact that extracurricular surveillance does occur, regardless of whether it is officially approved. I was wiretapped in 2011 after taking a phone call in my congressional office from a foreign leader.”

The former representative tales the tale, now, for the first time. He is pretty sure that, in contravention of the separation of powers, U.S. “intelligence” recorded a conversation he had with a Son of Qaddafi, and then leaked it to the Washington Post. His confidence seems reasonable. He is not talking out of school. His inference that it was an “American intelligence agency” seems more than sound. Besides, he writes, “which foreign intelligence service conceivably could have been interested in my phone call, had the technology to intercept it, and then wanted to leak it to the newspaper?”

Kucinich makes clear that he is no supporter of our current president. But he is obviously somewhat shocked by the ease with which his fellow leftists have embraced a pro-CIA/NSA/alphabet soup narrative:

I have never gone public with this story, but when I saw the derision with which President Trump’s claims were greeted—and notwithstanding our political differences—I felt I should share my experience.

When the president raised the question of wiretapping on his phones in Trump Tower, he was challenged to prove that such a thing could happen.

It happened to me.

For anyone to mock Trump about his belief in illegal wiretapping? Amazing.

Sure, Trump’s an ass. But he is a smart one, playing us. And on government surveillance, he has certainly stumbled into one of the horrible truths of our Age Of Snowden: the Deep State has gone rogue.

You are not safe from the State.

Not even the President is safe from it. If you think the President is “in charge” and therefore safe, you may want to update your model of “our living constitution.”

All this is the result of a hundred years of laxity, even perversity, allowing the administrative state to grow out of bounds of the written Constitution.

Well, more than a century. The Constitution broke long before Teddy Roosevelt and Woodrow Wilson and World War I. But it has been made an outright mockery of its old self in our time, and both political parties are responsible. For the administrative state they created and fed — the bureaucracies — constitutes the permanent government.

And it is upon this permanent government that Constitutional government — the legislative, executive and judicial branches — appears as surface phenomenon. A particularly noticeable type of scum.

Constitutional government is well on its way to becoming the epiphenomenon of the real government.

That the President of these United States would unceremoniously blurt this truth out in public is, well, interesting for many reasons. I know that many of his supporters will take this occasion as “proof” that their Savior will clean the swamp that is The Deep State.

I remain skeptical.

twv

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Some Californians want to secede from the union. I have two reactions:

  • Idiots!
  • Hooray!

They are idiots because they want to leave merely because they — a majority being Democrats in the quintessential “Left Coast” state — did not get their way in the last presidential election. This is more than a little wrong-headed. Many American voters never get their way. (I’m one. I never have voted for a winning presidential candidate.) It’s a representative republic, this our union of states, so we have to expect not always to get our way. The secessionist Californians seem to not understand the basics of the system. The spoiled asshat brats.

On the other hand, I think the United States is stuck. A secessionist movement might pry open the trap.

Republicans this last time around decided to “unstick it” by sticking it to the Democrats . . . with the candidate Democrats most hated. Republicans chose Trump because, well, the Democrats had already chosen Hillary, who was the candidate Republicans most hated. One good hate deserves another! Or so the messed-up rationale runs. But, this being the case, or not, I doubt Trump will unstick the country from its prodigal ways of too much spending, too much debt, too high taxes, too much regulation, and too intrusive and hubristic a foreign policy. He will almost certainly exacerbate some of these. His preference for nationalism over federalism bodes ill.

So, another way to unstick the country would be to break it up. And, well, to Californians: good riddance!

But there’s a hitch. Californians are Americans, and many would not want to leave.

And, more importantly, there are parts of California that want to leave . . . California. Before any secession from the federation should be contemplated, the secession of the northern counties to form a new state, Jefferson, should be on the table. I am pretty sure the would-be Jeffersonians want to stay part of the United States.

Paul Jacob, today, argues that the formation of the proposed new state, Jefferson, should be up to those northern counties that have already voted to secede, on a county-by-county basis.

Mr. Jacob also notes that there had been a “split up California” measure on the ballot a few years ago. And I certainly remember it, because I had written on the subject at the time. (Though I cannot find where I wrote about it. Hmmm.) The main point is that California is too big, and has too many people per politician . . . I mean, per representative. The state has the highest constituent/representative (c/r) ratio in the country. By far.

Making of a new state out of the far north California counties would give the new state probably the lowest c/r ratio. But it would have other effects as well.

I note that when the split-into-six measure was on the ballot, Huffington Post whined the most about the wealth/poverty ratios. Of course, the poorest segment, the north, is precisely the one that wants to leave the most. This tells you a lot about the imagination and political biases of the folks at HuffPo. And how divergent they are from actual poor people in the real rural world. Jeffersonians apparently want a state without a strong city.

sixcalifornias_0But take a look at the HuffPo map. Not for the wealth/poverty ratios, but just for the shape of the states then proposed. The great thing about the proposal was that it reflected actual regions, how people live and how they think about where they live. This is regional affinity, and it is something city-folk today tend to dismiss, as their preferred policies run roughshod over rural American preferences.

Perhaps more importantly, the proposal separated the three major cities: San Diego, Los Angeles, and San Francisco, each major city getting its own region. That makes sense. Each city is its own economic and cultural powerhouse. Each city has a region that backs it up. While separating regions fits with regional affinity, uniting a city with its natural region is also a good idea.

There are obvious problems with the six-state regional split, and these problems may have been part of the reason the proposal failed at the ballot box. First, six is just too many. Probably two too many, if not three. Second, too much weight was given to Sacramento — it was to become the capital, I guess, of “North California,” but it would dominate that new state in an unhealthy way. Third, the union of the Sierra Nevada and central valley regions seem odd, from either a regional affinity basis or a city/city-region basis.

Arguably, the Sierra Nevada (far east) counties might wish to break off to join Nevada (which is a state with too little private property, too much federal land), or join the new “South California,” or join the eastern counties of “North California” to unite with the new Jefferson State. This should all be decided in a complicated series of plebiscites, with options to choose the new alliances.

As is probably obvious by now, I’m no expert on California culture or political geography. But when I look at the rural regions, I expect to attach a major city to them. The proposed Jefferson does not have a major city. And there is no way that today’s political behemoth of Sacramento would join the norther secessionists. But those counties to the east of Sacramento might very much want to join Jefferson, and, if they did, the Sierra Nevada counties should have the option to join the new state, too. They won’t nab a major city, but they might gain important populations with cultural and regional affinities.

So, from the start, Congress should demand plebiscites in the would-be Jefferson counties, and the southern Oregon counties, too, whether they want to form the proposed new state. If yes, then, move to the next step: one by one, the eastern counties should vote to join Jefferson or not. See how far down the east of California Jefferson would stretch. Each of those counties should also have the option of joining Nevada or some other city region state not allied with San Francisco.

The Central Valley region, I repeat, puzzles me. It seems like it should belong to either the San Francisco or Los Angeles city regions, and therefore part of their respective states.

Separating “North California” from “Silicon Valley” seems nuts to me. But separating “West California” from both the San Francisco and San Diego city regions makes perfect sense. So, it seems to me, after determining the size and shape of Jefferson, then we would need to determine the shapes of South California and West California. The mostly likely states to emerge would be Jefferson, North California, West California, and South California, with the Central Valley and Sierra Nevada regions divvied up among the four.

In my previous writings on this, I think I suggested just three states, Jefferson, North California, and South California. But that lumped in LA with San Diego. That seems unfortunate. But I remember drawing the line east and west for South California pretty easily, geometrically by county borders, that way. That would be inhumanly arbitrary, of course.

In any case, after splitting up the state into three or four pieces — and perhaps allowing some counties to merge with adjacent states) — then each state could be asked about secession. Would West and North California secede? Perhaps. I doubt it. It seems so stupid, and so difficult.

Unless, of course, Americans take the whole thing as a cue: split up the union and form several new unions, with the new unions placing the federal government under receivership.

But, somehow, I don’t think anything that drastic could widely and effectively be contemplated until too late.

twv