Archives for category: Constitutional Concerns

When politicians speak of the inconvenience of the Constitution, or insinuate that it is “outdated,” we should neither be shocked nor impressed.

Thieves don’t like security systems, murderers don’t like electric chairs. We don’t ask an aggressor’s opinion of the law. Likewise, professional politicians* are the very last folks to listen to for judgments about the troubles associated with systems of limited government power.

Constitutions — explicit frameworks for the rule of law — are not designed to make it easy for politicians to do what politicians do.

A constitution is designed to protect the citizens from political government’s historical and ongoing and seemingly inevitable excesses.

States rarely (if ever) arise “for the good of the people.” States arise by conquest and imposition, and are best at exploitation of some for the good of others. To curb the severity of the State’s innate “inconveniences,” law is marshaled against it, myths are erected to guide its behavior, ethical principles are held up to check its powers.

Which is why Jefferson wrote of the necessity of severe limits: “in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

And the “man” most in need of such chains is not your everyday worker, or parent, or child, or loafer. It is the politician. Normal folks place so much confidence in politicians perhaps in impatience to go about their lives, or in desperation or hope. But it has been discovered, over the vast eons of history — the rise and fall of states and empires, kingdoms and republics, tyrannies and democracies and everything in between — that confidence in leadership is over-rated.

Hence the need for limits on government. Written constitutions have been tried. But because they are in the hands of politicians to interpret and rewrite and skirt, they have proved imperfect.

But that does not mean that they should be gotten rid of. Still, if we could find a better way to limit state power than parchment rule-of-law frameworks, it might be a good idea to look into it. For what all government limits point to is the limits that liberty itself requires. “Liberty is the only thing we cannot have unless we give it to others,” William Allen White said.

Another quotation suggests even better the limits at the heart of liberty: “The right to swing my fist ends where the other man’s nose begins.”

“Constitutionality” is the practical concern with such limits.

And we cannot trust politicians to provide it. Nor should we be surprised when we see politicians balk. We should even remain a bit suspicious when they play encomiast to the concept.

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* Throughout this piece, by “politician” I mean the professional pol. In other contexts, citizens are also politicians, as well, insofar as they attempt, through activism, argumentation, litigation, or voting, to influence the State. But come to think of it, this points to a problem inherent in the question of “whom to trust” regarding matters of constitutionality. For even citizens play politician . . . and can be as corrupt or evil as any pol.

N.B. The visual “meme” is from my second memegenerator.net account: Wirkman. (Not my first, Lucian.) The Jefferson quotation is from the draft of the Kentucky Resolutions. The famous “fist” quote turns out to have been written by one Zechariah Chafee.

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In a far corner of Facebook I found someone citing two justices of the Supreme Court in an infamous marijuana case. I was pleased to be reminded of this. What follows are a few passages from the case, with my commentary — though what I write is indeed duplicative in spirit to the OP.

img_5132In the case of Gonzales v Raich the Supreme Court ruled that under the Commerce Clause of the US Constitution, Congress may criminalize the production and use of homegrown cannabis even if state law allows its use for medicinal purposes. But of course the ruling applies to a lot more than just marijuana.

Justice Stevens, writing in the majority opinion, proves himself to be quite the lawyer:

The case is extremely troublesome because respondents have made such a strong showing that they will suffer irreparable harm if denied the use of marijuana to treat their serious medical illness.

But the question before us is not whether marijuana does in fact have valid therapeutic purposes, nor whether it is a good policy for the Federal Government to enforce the Controlled Substances Act in these circumstances.

Rather, the only question before us is whether Congress has the power to prohibit respondents’ activities.

Of the dissents, Justice Clarence Thomas’s was the most interesting:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to ‘appropria[te] state police powers under the guise of regulating commerce.’

And what is the consequence of a lack of constitutional limits?

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’

What Thomas has indicated, here, is simple: the federal government behaves in an unconstitutional manner as a matter of course. When Speaker of the House Nancy Pelosi was asked about the Constitutional rationale for Obamacare, for example, she expressed incredulity: “Are you serious? Are you serious?”

Politicians and ideologues are almost united in showing contempt for the Constitution and its structure.

For all our laws, we live in a lawless State. It is not just that the modern federal government exists by a sort of social consent that we may lie about the Constitution and that this is a good thing. Congress can make the general government do almost anything it wants, really, if enough politicians say so, and congresspeople think they get reëlected despite doing what they do.

This means that there are no effective foundational checks on government power. The checks are mainly political. Sure, lawyers still hold sway, and can use existing law even against existing political opponents — the whole Russiagate investigation sure seems like that is what is happening re Trump. But, at the merest crisis, we could slip into society-wide tyranny, not the little, sectoral tyrannies we now must endure. 

So, what is the bottom line? If you are an enthusiastic voter who is generally in favor of the shape of the U.S. Government and its wide regulatory reach, you are in league with the forces of tyranny. How so? By accepting all the little tyrannies we have now, and endorsing politicians who do not see themselves as in any way meaningfully checked by any constitutional structure.

I consider this no different in kind between apparatchiks in the Soviet Union or Nazi Party members in the Third Reich. It’s only a difference in degree.

We just haven’t had our Night of Long Knives yet.

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Sometimes it seems as though people no longer know what freedom of speech is. The Stanley Fish argumentation in his infamous essay against the very coherence of free speech has not increased clarity or general understanding — though I take it that was indeed what Fish was trying to provide. So I have, in a number of venues, tried to explain free speech.

Recently on Quora I have answered two questions that sketch out what I believe to be the correct formulation of the idea:

I provided the gist of my understanding in the first essay:

Remember, freedom of speech is a term of art. It does not mean “all speech is free,” or that all symbolic acts are legally justifiable. Freedom of speech is merely speech broadly construed (semiosis) that does not aggress against the rights of others to be free. It is a way of defending freedom in the realm of speaking, listening, reading, writing, etc.

We cannot (rightly) possess a right to use speech to conspire against the rights of others.

The most important point to take away is this: a right to free speech does not mean that all speech is free.

Free speech “absolutists” get this wrong all the time, for they are constantly moved by their desire for consistency and absolutism to construe all speech as free. One reason for this is that they wish to use the First Amendment in a lawyerly way, with specific words carrying the most weight. They most strongly wish to avoid philosophy, and instead use the Constitution as a magic document, and the words in it as incantations that solve all problems.

We can see how well that has turned out.

And perhaps my free speech absolutist friends are afraid of Fishian (piscine?) error, of saying that if some speech is free and other speech is not, then the demarcating line must be arbitrary.

This is just simply not the case.

So, what is the line of demarcation between speech that is protected as free and speech that is not?

Freedom itself, in the wider context.

Most importantly, free speech really only makes sense in societies that regard general freedom (liberty) as in some sense primary. Indeed, it also only makes sense — and this can be seen best when paired up with freedom of religion and especially the press and association in the First Amendment listing — in a private property rights regime.

You have the right to speak freely on your property. You have the right to speak freely on property you have hired for the occasion.

It necessarily becomes murky regarding public places. This is especially murky regarding the freedom of the press when the press is a government outfit, like Britain BBC. What is “freedom of the press” regarding a government-run medium? All speech is finite, and its purveying is done under conditions of scarcity. Everyone must ration their resources. Including newspapers and blogs as well as radio and TV networks. So when the BBC makes an editorial decision, “free speech” is problematic: which words and ideas to broadcast is a constant decision-making process, with some telling others what to say and what listeners and viewers may hear. “Freedom of speech” is perilously close to meaningless. (But is not.) Which is why minimizing government is a necessity: it obviates basic principles and places government bodies in the position of serving some people and not others.

And government is, in theory, supposed to serve all people.

Oh, why did I bring up “freedom of the press”? That is not free speech, I can hear someone protest.

But it is. “The press” is just a technological way of distributing speech beyond our local realms, outside of our properties. It is free speech with extended borderlines. But the extension must always conform — as speech alone must conform — to individual rights in society.

It might be useful to remind today’s confused connoisseurs to see these concepts in a continuum:

freedom: of thought — of speech — of press

with the most basic being on the left and going from private to public as we read right.

And the context of property rights integrates everything. Without property rights there is no freedom of any kind. For freedom depends on exit rights and exclusion rights. Which, together, make up free association, which is implied by free speech and press freedom.

And, as I noted on Quora: No one has a right to contract a hitman to murder another. You cannot absolve yourself on “free speech” grounds for that sort of criminal speech. Similarly, you may not command someone you have reason to believe will follow your orders to commit a crime, either. The common law has long held that incitement to riot and similar acts do not constitute protected speech because free.

The idea is simple: freedom as both a fact and a right requires reciprocity. Your speech cannot be defended as free speech if your speech precludes others from their free speech.

It is an old idea, reciprocity. But people still get this wrong.

Maybe it would help to compare freedom of speech and press with freedom of religion. In the United States, the First Amendment prohibits Congress from messing about in religious matters, or favoring one religion over another, ceteris paribus.

But that does not mean everything declared “religious” is protected. It may be the case that you desire to sacrifice infants and virgins to your god Ashtaroth, but let us be realistic: sacrifice of this kind abridges the rights of infants and virgins. “Religion” is no excuse for crime.

This is not so nuanced an idea that it cannot be readily understood. No? But maybe it is difficult. After all, I cannot recall anyone else make this exact formulation.

So this is what I insist upon: all these British-American concepts are terms of art, and the art should not seem to us British and American citizens at all recondite. The art is liberty. As soon as you erode liberty either by erecting a Leviathan state (of any variety) or by engaging in piecemeal criminal activity, these freedoms become incoherent.

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It is apparent that dark-skinned Africans have no especial gift for government. Governments headed by blacks in America as well as in the “Dark Continent” are almost (but not quite) universally corrupt, violent, tyrannical or just plain crazy.

And their people are the poorer for it.

And, sadly, nastier — it has gotten quite bad even in the once-rich South Africa:

Racist whites extrapolate a lot of very racist conclusions from all this. But perhaps we should draw a very different kind of conclusion. It seems clear to me that folks of African descent thrive best on limits, sure — but what if those limits were to become the limits that liberty provides . . . that is, real freedom and individual responsibility? Instead of tyranny, authoritarianism, and cruel exploitation, swap the harsh limits set by common forms of outrageous force with the civilized use of defensive force, rigorously limited by the limits that liberty itself prescribes.

Might not it be from Africa that the libertarian future shall proceed?

After all, a gift for government is not a univocally good trait. It implies both soft tyranny and chilling servility, an irrational willingness to accept deep hierarchies and jury-rigged ideologies. So if Africans seem ill-adapted to modern society, maybe they are telling us something about our own institutions. Perhaps they corrupt modern “democratic” forms of governance so completely not merely because they themselves are so susceptible to violence, corruption and tyranny, but because our forms of governance are so readily corruptible.

Blacks are ill-served by modern government because it is so statist.

The Molinarian vision of contract-based government, with its competing institutions of protection, insurance and adjudication, might find its most fertile ground in black-majority societies. And from there the ideas and institutions might spread.

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The more diverse a people are — the greater the variety of ethnicities, languages, cultures, folkways — the less extensive a government they can peacefully share. Real diversity requires limited government. Only in monocultural societies can robust, Leviathan government remain sustainable for long.

The reasons for this are not hard to fathom. The chief of these is the tragedy of the commons.

A government in the form of a republican State (a “liberal democracy” as it is sometimes called) is conceived of by most of its proponents as a shared resource, established for the good of all — a “commonwealth.” But common resources require regulation to prevent individuals and groups from abusing and over-using the resources — that is, adapting to the common resource opportunities by gobbling up more for themselves than for others. And by “adaptation” I mean altering their behavior and their way of life to enable them to secure more common resources. And, as anyone with a lick of sense knows, self-regulation would be ideal. It’s the least expensive way to maintain the institutions, secure their long-term viability. Hence the importance of a monoculture.

enjoy-capitalismAristotle wrote about this. But I haven’t read Politics in 40 years, so I forget if the great philosopher applied the commons problem idea to the form of government itself. (I will let someone else look it up, or just tell me.) Economist W.F. Lloyd wrote about this in the 1830s, and ecologist Garrett Hardin made it famous in the “tragedy of commons” phrasing in our time. Hardin applied it to environmental resources, but it also applies to State-marshaled resources of any kind, including wealth obtained from taxes. Public Choice economists have been working on these problems for about the period of my lifetime, though Vilfredo Pareto clearly understood it in his critique of socialism at the beginning of the 20th century.

It was this idea that helped lead me to prefer limited government as a general policy in the first place. It should be easy to see that the more similar people are, the more likely they are to forgo overusing public resources. Why? Out of kinship altruism. But this sort of forbearance is harder to generally maintain in diverse populations, so there is a tendency for welfare states to turn into “churning states,” where the web of “everybody trying to live at the expense of everybody else” becomes so complicated that no one really knows who the net benefactors and net beneficiaries are. This leads to poltical strife, and … our present situation.

IMG_2027The Scandinavian states have been moderately successful with a robust redistributive state in large part because they have been so genetically and culturally uniform. And yet, over time, the moral probity that prevented overuse of common resources has waned, and permanent dependent classes have formed. Oddly, these countries have been importing these dependent classes, too, mainly from Muslim countries, so I expect these states to fall or undergo some significant kind of revolution in a generation or two.

Note, then, how wrong today’s progressives are. Driven by liberal piety, they insist upon diversity. And yet their politics is one of class division combined with socialistic government growth, which undermines sustainability. It is inherently contradictory.

More contradictory yet is their internationalism. Nationalism — indeed, ethnonationalism — is the surest sustainable way to keep welfare states going in the long run. So progressives are wrong and the so-called “alt-right” is definitely correct. If you want extensive state action, you need to draw boundaries along ethnic or “racial” lines. And indeed we find that alt-right maven Richard Spencer, after scratching the surface of his poses, has proven to be an ardent supporter of the welfare state.

Now, there are several other ways (serving as alternatives to ethnonationalism) to counter-act this commons-overuse problem. The chief method, in our time, has been consumerism. Consumer culture has broken down ethnic divisions, and can indeed make populationsmore uniform the better to be ruled by — and encourage support for — an extensive “welfare state.” And once again we find progressives utterly on the wrong side, for they pretend to be against consumerism, and their hatred for big business works against the only cultural factor that could possibly make the politics of social democracy work in a diverse population.

For my part, I prefer actual diversity, and believe that a rule-of-law-based polity is the way to go, so I oppose both the pathetic alt-right and the contradictory mishmash philosophy of progressivism.

Yes, I’m a real liberal. I do not just spout liberal pieties, as does today’s left, but I embrace the liberal spirit of tolerance of diversity, which the left, today, does not (their class warfare version is faux-diverse, and in fact promotes commons overuse). And I also wish to establish long-term social institutions, not institutions subject to takeover by special interests and run along exploitation lines. Democracy in a welfare state is as contradictory as a welfare state in a diverse society.

So, you may have guessed it: diminishing the scope of democratic action is another way to control overuse of common resources. On the left this is done by seeking to limit lobbying of government (a basic right under our Constitution) and setting up of complex bureaucracies and guilds of power, immune to electoral shock. On the right we have . . .

Donald Trump.

IMG_1929Trump sure seems anti-democratic, and that is a possible solution to save the welfare state from its most hysterical advocates and its abuse from group interests at the public trough. And, let us admit, that is precisely what modern conservatism is all about: saving the welfare state from the progressives and their insane prodigality. (Conservatives do talk about building down the welfare state, but that’s just their piety; it does not seem to be a real goal. Demonstrated preference tells us this.)

Since I’m not a conservative, you see why I dislike both political parties and the major factions within them. And why I don’t get on board with Trumpism.

I can find Trumpism funny, however. Why? Because modern ideologies are so incoherent that Trump serves as the cutter of Gordian Knots; he’s the Mule (as I’ve said any times); he’s the Loki figure. Whether this will save the welfare state, or bring it down faster, I do not know. While we wait to see what happens, Trump’s bizarre antics entertain.

He and we fiddle as the Empire burns.

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All that is necessary for evil to triumph is for good men to do nothing and for the State to do something.

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The great liberal insight was that social order need not depend on submission to hierarchy but on reciprocity, instead — a reciprocity of peace and liberality and tolerance.

IMG_2863When the Other refuses to reciprocate on those grounds, however, then we have a state of war, where we must reciprocate belligerence for belligerence.

This is clear in the writings of Herbert Spencer — what with his distinction between the militant and industrial forms of coöperation and social cohesion — but it is even clearer among today’s evolutionary psychologists (EP) and sociologists (sociobiologists).

Liberal theory — and, after it, libertarian theory — sidetracked the reciprocity issue by reifying rights into a metaphysical realm, and positing their inalienability. This had some political advantages in its heyday, but nowadays prevents people from dealing with the actual advantages of liberal solutions. It rigidifies thought, of course, turning libertarians into philosophical dogmatists. But, worse yet, it throws the problem of conflict resolution to the authoritarians.

IMG_2104Hence the modern impasse. Libertarians are still trapped by inalienability theories, and progressives are locked out of access to the basic notions of conflict avoidance, which makes them crazed. And conservatives and “liberals” waffle between reciprocal and authoritarian solutions depending on the issue, or the politics of the moment. This makes their policies incoherent at best.

And the people, in general, have become utterly disenchanted with all sides.

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img_2320This morning I disengaged from the closed-but-unmoderated Libertarian Facebook group that my friend James Littleton Gill has promoted in the past. Why? It mostly consisted of posts about how libertarians are racist and really like or approve of Nazis. Yikes.

Apparently, if you set the cost of joining a group at FREE, and don’t vet anything, then, why, your enemies will ruin it!

Wow. Who would have thought!

It is almost as if private property and the legitimate threat of expulsion serve a function. In a free society. Read the rest of this entry »

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?

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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.

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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…