The Ultimate Manifesto, Part 1: “Judicial Restraint”

     We heard rather a lot from John Roberts, during his confirmation hearings, about the importance of judicial restraint. It’s one of the shibboleth phrases of the Right, to which obeisance is paid but seldom is more than lip service given. Just this past week, Jeb Bush, now a candidate for the Republican presidential nod, echoed the phrase when he was asked about how he would select federal judges were he elected.

     So what do these worthies think it means? Not the dictionary meaning, mind you, but the meaning its most conspicuous users put to it by their actions.

     One interpretation of the phrase is found in the judicial doctrine of stare decisis. That’s rough Latin for let the decision stand. Its black-robed users mean by it We defer to earlier decisions of this body, feeling it would be wrong to overturn them. Wrong why? Sometimes there is no reason other than stare decisis itself: the unwillingness to overrule an earlier decision, sometimes because subsequent law and government action might have been founded on it, sometimes out of an unarticulated fear that it might somehow reduce the authority of the Supreme Court.

     Viewed thus, judicial restraint protects tyranny quite as well as anything else.

     The role of the Supreme Court as stated in the Constitution seems relatively simple and straightforward:

     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

     In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Article III, Sections 1 and 2]

     The most important of all the authorities – note that I do not use the word “powers” here – the Supreme Court has undertaken, “judicial review” of the law for Constitutional fidelity, is conspicuously absent from that list. It was arrogated to the Court by Chief Justice John Marshall’s opinion in Marbury v. Madison, and has never been seriously challenged.

     Let’s stipulate for the purposes of this tirade that “judicial review” is an authority somehow implied to the Supreme Court by the Constitutional phraseology. Inasmuch as judges routinely claim the authority to proclaim the law – anyone who’s ever sat on a jury has heard a judge say to that jury that “I am judge of the law; you are judges of the facts” – it’s as well established de facto as any other authority ever claimed by a court. Is it even conceivable that “judicial review” includes the authority to rule against the text of a law on the basis of the Court’s notions about what its drafters and those who voted on it intended?

     The most extreme extension of the notion of “deference to legislative authority” could not possibly embrace this assertion of judicial telepathy. Yet that was the foundation for John Roberts’s execrable majority opinion in King v. Burwell, his most recent rescue of the Patient Protection and Affordable Care Act, a.k.a. ObamaCare:

     It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well. [From the majority decision written by Chief Justice John Roberts ]

     This, then, must be taken as consistent with John Roberts’s conception of “judicial restraint.” In his masterpiece The Vision of the Anointed, the great Thomas Sowell wrote:

     Those who argue for this view of the judge’s role – for “judicial restraint” – often say that judges should follow the “original intent” of laws in general and the Constitution in particular. Yet ironically, this very phrase has been seized upon by opponents and given meanings far removed from that of those who use it. Professor Ronald Dworkin, for example, argues against original intent on grounds that “mental events” in the minds of legislators or writers of the Constitution are difficult or impossible to discern. But of course, nobody voted on what was in the back of somebody else’s mind. What was enacted into law were the meanings of those words to others – in short, the public meaning of words. As Justice Holmes put it, the relevant question was “not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” Those who have urged judicial restraint have been very explicit that they did not mean to delve into the psyches of lawmakers, but to begin with the public meanings of the words the lawmakers used, as of the time they used them....

     Far more is involved here than a mere misunderstanding. Power is at the heart of the dispute. Although New York Times columnist Anthony Lewis wrote of the Constitution’s “expansive phrases that would be given contemporary meaning by each generation,” generations do not vote on the constitutionality of laws. Judges do,. Thus the current generation’s decisions are not replacing those of a previous generation; judges’ decisions are replacing those of the current generation by imposing their own revision of what a past generation has said. The replacement of historical meanings by “contemporary meanings” is a major transfer of power to judges, not only from other branches of government, but from the people. It is an erosion of self-government and an imposition of the social vision of judges in its place.

     When I wrote just yesterday that law and the rule of law no longer exist, this is exactly what I meant. Today, black can mean white if five “Justices” of the Supreme Court decree it to be so...and no one can do a damned thing about it.

     There is no longer law; there is only the will and whim of those in power...and they have made it their top priority to own the courts, from the lowest to the highest. What, then, of the citizen’s supposed duty to obey the law? Upon what is it founded?

     More anon.

The Fatal Decisions

     Is it even imaginable that the “Justices” who just voted to:

1. Ignore the written text of a bill and all the collateral evidence that says “and we really mean it this way;”
2. Seize political control of the oldest and least political of all human institutions;

     ...don’t know what they’ve done?

     The Supreme Court has just written into our “Constitutional” framework that:

• The text of a law doesn’t matter;
• The text of the Constitution doesn’t matter;
• What a majority of “Justices” imagine about what those who passed the law intended are of decisive legal weight;
• There is no human practice, custom, tradition, or institution which the State cannot seize and tax, regulate, reorganize, or completely redefine to suit itself.

     The entire edifice of constitutionalism has just been ceremoniously trashed. Oh, we could see it coming from miles away. At least, I could; I’ve been watching this progression too closely and for too long to harbor any illusions about it. However, I must admit that I didn’t expect it to happen quite so rapidly or precipitously. Alvin Toffler would have something to say about that, wouldn’t he?

     We will pay for this in blood. I can only hope that the first persons to render up their due will be those selfsame “Justices.”

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     Allow me to tote up what we have lost, these few years past.

     There is no longer a Supreme Law in these United States. Indeed, there is no longer law as Americans have traditionally understood it. Therefore, there is no rule of law. How could there be, when judges have arrogated the privilege of rewriting the actual text of a law to reach a decision in harmony with their preferences?

     Without law in the customary sense, there cannot be a legislature with definite powers and responsibilities. At this point, Congress is either omnipotent or powerless, depending on the correlation of forces inside the Washington Beltway.

     There is no longer a president as the Constitution defines the office: one who presides, enforcing objectively defined laws arrived at by a legitimate, well specified procedure, rather than ruling by decree. Instead we have an Orator-In-Chief with dictatorial powers. How did we choose the current bearer of the title? According to his skin color? Great God in heaven, what will the next one be like? At least the Romans had one Marcus Aurelius. When will ours arrive?

     There is no longer any branch of government that we can accurately call “the people’s representatives.” The House of Representatives, utterly controlled by the GOP, supposedly the party of limited government and strict Constitutional construction, has done nothing to head off any of the overreaches of the Obama Administration or the federal bureaucracy it commands. Should it fail to impeach John Roberts for his treason, the Senate will have revealed itself as a high-priced club of no consequence.

     There is no longer a default assumption of probity for judges. Actually, that fantasy died some time ago. A judge who can rewrite a law, or nullify a solemnly agreed contract simply by calling it “unfair” or “unconscionable,” is not to be trusted...and that is now within the powers of any man who dons the black robe and mounts a judicial bench.

     No, I’m not telling you anything you couldn’t have figured out for yourself. Maybe you had already figured it out, in which case all the above is just my concurrence. Allow an old man at least one cri de coeur before he throws up his hands in surrender.

     R.I.P.U.S.A. We hardly knew ye.

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     I’ve gone from dreading a Second American Revolution to hoping for one. If I were young and hale, I’d surely march with it. I might even try to touch it off myself.

     My friend Dystopic has reminded us that war is the continuation of politics by other means. Have you ever wondered what Karl von Clausewitz had in mind when he wrote that? I articulated it as explicitly as I could in the Foreword to this novel:

     Other prominent science fiction writers have delved into the possibilities of a society that’s resolved that there shall be no State. However, none of the ones with which I’m familiar address the sociodynamics of such a society: the forces that would shape its development, with special emphasis on those that would tend to tear it from its founding premise. For me, that’s the really fascinating thing about anarchism. You see, it’s been tried, with varying degrees of longevity and success, many times in the history of Man. Yet there are no anarchic societies left on Earth as I write this foreword.

     Well, except for one: the whole of the human race.

     The States of Earth exist in an anarchic relation to one another. Each has its own regional code of law, which might differ markedly from all the others. Despite several thrusts at the matter over the centuries, there is no “super-State” to enforce a uniform code of law over them all. More, they view one another as competitors in many different areas; their populations and institutions are often in sharp economic competition with one another. Thus, they are often at odds. They resolve important disputes among them through negotiation or warfare.

     When a society has no agreed-upon written law that 98% or more of the participants willingly respect, there is nothing but rule by naked force, according to the will and whim of the dominant power. Global society has been relatively peaceful and stable these past few decades – I said relatively, Gentle Reader; brush up on your history if you think otherwise – because the dominant power has been that of the United States, which had no imperial ambitions and was fairly reliable about doing what its political masters said it would do. Over the course of the last six years we’ve seen what happens internationally when those conditions dissolve. I put it to you that we’re about to see what happens domestically, as well.

     The whole point of a political system is to arrive at the law: to produce it, maintain it, and enforce it. But law has just been revealed to be nonexistent, a phantasm. Therefore politics, the mechanism by which we attempt to avert rule by naked force according to the will and whim of the dominant power, has just been revealed as pointless. Add that in a nation whose citizens possess an estimated 300 million firearms, the “dominant power” isn’t as dominant as its masters would like to believe. If we weren’t talking about the United States – if the country of interest were some blood-soaked realm in the Balkans, for example – what would you expect to happen?

     Ask yourself, in all honesty, whether the conditions and premises that have averted that sort of development from our country are still in force.

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     If there’s anything more to say about law, politics, and government under these circumstances, I can’t conceive of it this fine June morning. Perhaps that will pass; perhaps I’ll see things in a rosier light in a day or so. Being optimistic by nature, I’ll hope for that and turn to other things for the nonce. Perhaps I’ll derive some motivation for my novel-in-progress from all this crap. That, at least, would be pleasant.

     Have a nice day.

Point / Counterpoint

Two fascinating items from the weekend provide a most revealing glimpse into two contrasting mindsets. The first is from a state legislator from Vermont:

Vermont, if memory serves, observes the Second Amendment in all its glory: i.e., its laws recognize the right of the people to keep and bear arms. This is sometimes called “constitutional carry:” no permit is required to acquire a handgun, nor to carry it publicly. The number of Vermonters who exercise their rights to carry is unknown...as it should be.

Apparently, Miss Carlson is dissatisfied with this state of affairs. Whether Vermonters are aware of her opinions is also unknown...but they’re not likely to remain unaware for long.

The second item comes from the reliable, redoubtable University of Tennessee Professor of Law Glenn Harlan Reynolds, also known as InstaPundit:

Ignorance of the law, we are often told, is no excuse. "Every man is presumed to know the law," says a long-established legal aphorism. And if you are charged with a crime, you would be well advised to rely on some other defense than "I had no idea that was illegal."

But not everybody favors this state of affairs. While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of "regulatory crimes" in which intuitions of right and wrong play no role, but for which the penalties are high.

If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.

Please read it all.

“Not everybody favors this state of affairs,” indeed. For when the law, by its very luxuriance, cannot be known in its entirety by any person – when regulatory bodies that legislative oversight, much less Constitutional authority, are permitted to pass regulations with the force of law of which no private citizen is informed – the law has gone through a great and unacceptable transformation: it has become the private, secret property of the State.

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The relevance of this situation to firearms law is especially strong, as the fifty states and the District of Columbia each have their own firearms laws and regulations, some of which are under legal challenge due to recent Supreme Court decisions. Thus, a man with carry rights (permitted or otherwise) in his home state is under obligation to determine to and through what other states he can travel armed without putting himself at hazard of legal penalty. Should he confuse the laws of one state with those of another, his mistake could tell heavily upon him and his family. Particularly firearms-hostile jurisdictions have levied harsh prison sentences and stiff fines upon Americans utterly innocent of any true wrongdoing. In some cases, the victims’ cars and other personal possessions have been confiscated.

But ignorance of the law is no excuse, right? Right?

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If you read yesterday’s tirade, you should be concerned, at the very least, about the state of law and justice in these United States. Yet believe it or not, I know people who will defend the legal status quo to the point of a screaming fit. “It’s got to be that way!” Many of them confuse this situation with the “rule of law,” whether deliberately or otherwise.

It’s an unstable situation for at least two reasons.

First, there can never be sufficient enforcement nor prosecutorial nor judicial power to enforce all the laws extant in a uniform fashion. Laws that go unenforced implicitly weaken all law, and the rule of law itself as a governing concept. Their consequences include such ideas as “laws are for the little people.” When ordinary private Americans see politicians and celebrities granted special exemption from the laws – recall the David Gregory incident? – the damage is fatally compounded.

Second, once the notion has been accepted that the law, because of its volume and complexity, cannot be uniformly enforced, prosecutorial discretion becomes the sole determinant of who the victims will be and how badly they will suffer. Prosecutors become more powerful, de facto, than any other public official. Those in whose souls resides a seed of corruptibility are tempted to use that power. Some of them will succumb.

“Law has lost its soul and become jungle.” – Bertrand de Jouvenel

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Juries willing to acquit in defiance of a trial judge’s instructions can only do so much to offset the malady described above. Even if every such jury were aware of its powers and all of them used them in every applicable instance, indictment and trial are themselves terrible ordeals to undergo. The accused citizen is often unable to maintain a job and an income. He’s usually bankrupted by lawyer’s fees, if nothing else. His familial relations will be affected as well. And of course, his reputation is likely to suffer regardless of the ultimate verdict.

Only the complete rejection of the existing corpus juris and its replacement by a penal law utterly dependent on the common understanding of justice – what used to distinguish between malum in se and malum prohibitum offenses – can correct the travesty that law and justice have become. But that cannot occur as long as there exist legislatures that feel free to disregard the constraints of the Constitution, prosecutors who believe themselves empowered to discriminate between accused citizens, regulators allowed to write “laws” beyond the legislated law and without oversight...or millions of Americans who think “there oughta be a law” is a respectable thing to say or think about any deed not covered by Commandments Five through Eight.

Food for thought.

King’s “Justice”

     It’s a measure of the uselessness of American media that I had to learn about the following atrocity from an article in The New Zealand Herald:

[United Against Nuclear Iran] was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran.

Its board includes former directors of foreign intelligence services including the U.K.'s MI-6, Germany's BND - and Israel's Mossad.

One of the strategies pursued by United Against is a campaign to "name and shame" entities that trade with Iran.

The organization named [Greek Shipping magnate Victor] Restis, who in turn sued United Against for falsely claiming his companies were "front men for the illicit activities of the Iranian regime."

     So far, nothing out of the ordinary, right? Ladies, hold on to your boyfriends: This is where things get really interesting. When the suit reached the United States District Court for the Southern District of New York, a third player emerged:

The Department of Justice intervened in September, asserting the state secrets privilege.

That so-called privilege doesn't come from the Constitution or from statute.

It's an unwritten judicial rule that allows the Government to block discovery of information through ordinary litigation "when disclosure would be inimical to national security," as the district court described it.

What followed would be comical if it weren't so serious.

The government asserted privilege "by submitting classified declaration by the head of the department which has control over the matter."

But even the identity of that official is itself a secret that the court declined to reveal.

The Government said that "disclosing even the identity of the agency involved creates an unwarranted risk of exposing the information it seeks to protect."

The court accepted that argument.

     That’s right. Restis was denied access to the one and only legal path to restitution because Uncle Sam has secrets that might be “endangered.” What secrets? About what subjects? Collected by whom? You’re not cleared to know that.

     But we’re not quite done yet:

Having barred access to information, the court went on to dismiss the case altogether.

Even if Restis could prove his case without the excluded evidence, the court said, it was "convinced that further litigation of this action would impose an unjustifiable risk of disclosing state secrets."

That is, even if the court were to block discovery of any actual state secret, the mere fact of the lawsuit would have a tendency to endanger national security - even if the trial took place entirely in secret.

The court thus came perilously close to saying that the case should be dismissed because it might be embarrassing to the Government.

The trial judge, Edgardo Ramos, admitted that the outcome was "harsh."

As he put it, "plaintiffs not only do not get their day in court, but cannot be told why".

     Scared yet?

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     Time was, we thought of the great judicial dangers to the private citizen as arising from such outrages as the Star Chamber, wherein an individual could be put at hazard of his life and freedom for “offenses” that fell under no statute, or for unspecified offenses. In the case above we have an almost perfectly opposite example: an individual is denied access to the courts because the State deems it contrary to its interests to allow it, but declines to say why.

     That happened in the United States, Gentle Reader. In my home state of New York.

     If the government can demand such a thing in a civil matter and have the demand honored by a supposedly independent court, it can do so in any matter whatsoever: civil, criminal, or petition for redress of grievances. The courts, supposedly the people’s defense not only against the predators among us but also the predators above us, have been nullified as instruments of justice. Their first obligation is to defer to the demands of the State.

     The needs of the State come first, don’t y’know.

---

     Why hasn’t this story appeared in an American organ? Do the barons of the Main Stream Media think it insignificant? Do they consider it perilously inflammatory? Or do they deem it not of interest to the majority of their dwindling readerships?

     I can easily imagine some publisher saying “Well, it’s a marginal defamation suit filed by a non-citizen, and the slanders hadn’t gotten around yet, and besides, this sort of government interference with the courts doesn’t happen all that often anyway, so what’s the big deal?” Minimization tactics. Keep the sheeple docile by reducing the destruction of justice to a minor matter, a triviality. The hell of it is, that’s a rationalization a lot of people would accept. “Wouldn’t happen to an American.” “Practically no one’s heard the slanders, so it’s almost as if they never happened.” “Protecting state secrets? Well, if they’re important enough, I suppose.”

     I think of this as the “hole in the leather” principle. Leather garments are altered only at great risk, because a hole in leather is forever. You can’t fix or patch such a hole. Neither can you fix or patch a gap in the legal system that allows the government to demand that a suit be dropped without saying why. Once that State privilege has been accepted—even once—it cannot be repaired.

     In the absolute monarchies, a king could get away with this...for a while. But kings are mortal and vulnerable. Charles I of England was beheaded for similar crimes. It’s a bit more difficult to behead the federal government of the United States. Granted that the notion has a lot of appeal.

There is no law. Barack Hussein Obama has demonstrated this.
There is no justice. The dismissal of Restis v. United Against Nuclear Iran has demonstrated this.
There is no redress of grievances against the State. This has been demonstrated too many times to require examples.

     Panama’s looking better all the time. I’m told the politicians there stay bought.

     Have a nice day.

     [Applause to Keith at Crusader Rabbit for the original link.]

A Thought For Thursday

[This morning’s reading brought me two exceedingly striking articles. I dithered over which one should serve as the launching pad for today’s tirade, but only for a moment. I’ve decided to save the one with wider scope and farther-reaching implications for tomorrow. I promise you: it won’t spoil between now and then. -- FWP]

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Hearken to Kevin Williamson:

One of the remarkable aspects of the recent spate of infantile left-wing protests that caught Jim Geraghty’s attention is that they are directed at private life and private spaces rather than at public institutions and public affairs. One expects protests at city hall; in New York, we even endured the unseemly spectacle of one of those shut-down-traffic protests conducted by the city council itself, as though its members did not do enough to inconvenience the residents of that city. Protests in front of the police station or the (hideously fascist-looking) Federal Reserve building are part of the normal course of affairs in a democratic republic with free speech and a strong tradition of lively discourse....

In New York City, protesters invaded the Pershing Square Café across the street from Grand Central Terminal, which is one of the more diverse spots in heavily segregated Manhattan, catering as it does to commuting 53-year-old lawyers from Fairfield County, who check any number of different demographic boxes.

The message these protests send is that there is no private space — and, therefore, no private life — so far as this particular rabble is concerned. It’s the familiar Trotsky conundrum: You may not be interested in politics, but politics is interested in you.

Does this plaint sound at all familiar?

Do you know what the victimists fear above all else? Being ignored. It’s why they put so much time and effort into getting in front of every microphone, every camera, and every so-called journalist in the world. If a sufficient preponderance of us were simply to ignore them, their influence would drop to approximately zero. Indeed, the power of that tactic – what Arthur Herzog called in The B.S. Factor the “mass yawn” – is so staggering that it can even nullify state and federal laws, without recourse to the political process....

The political class and its hangers-on fear exactly the same things as the victimists: being ignored. Were they to become aware that no one is paying any attention to their enactments and decrees, they would soon slink away. Some might even enter productive trades, perhaps as cheap prostitutes.

(Dear Lord, please strengthen me against the rising inclination to post a simple “I told you so” here each and every morning. It’s so wearying to be out in front of the curve all the time. Yours truly, Francis W. Porretto, Curmudgeon Emeritus to the World Wide Web.)

The pole star of the politician is the same as that of the political activist: politicization. Both of them want to destroy any notions the rest of us might have about whatever matter they/re hot and bothered about being a matter for private decision-making, in which politics and government have no place. After all, how could they possibly be significant if we refuse to allow them to coerce us about a matter around which they’ve wrapped their hearts and souls?

Ignoring them is getting harder all the time. But that’s not their fault; it’s ours.

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Quite a long time ago, at the late, much lamented Palace of Reason, I penned an article about a friend of a friend – a hairdresser – who reported being at her wits’ end because of customers whose behavior would once have gotten them the “bum’s rush,” with neither apology nor consequences. I mentioned an old sign that once appeared in every commercial establishment, but which one never sees these days:

We Reserve The Right
To Refuse Service To Anyone

The reason those little signs are no longer commonplace is that it’s illegal to refuse service to the members of various state-protected groups. Indeed, the enforcers of that law – the Civil Rights Act of 1964 – are so vicious and so relentless that there’s almost no behavior short of felony assault that the law will concede as a justification for refusing service. Worse, even when the justification is indisputable the shopowner who tries to enforce his will personally will always be on the dirty end of a lawsuit – civil, criminal, or both.

It’s often been said that “Hard cases make bad law.” There is some truth in the concept, but at least as often it’s the attempt to make law to redress some condition that’s generally deemed undesirable that elicits the hard cases. That’s given rise to an alternative maxim: “Bad law makes for hard cases.”

What constitutes a “bad law” is the question before us.

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Let’s return to Kevin Williamson’s article for a moment:

During the Civil Rights Movement — the real one, not the ersatz one led today by Jesse Jackson et al. — politics did genuinely intersect with brunch. On one side of the issue were people who argued that the social situation of African Americans at the time was so dire and so oppressive that invasive federal action was necessary. On the other side were well-intentioned conservatives such as Barry Goldwater and any number of writers for this magazine, who argued that if the reach of Washington were extended into every mom-and-pop diner in the country, it would constitute a step toward the abolition of private life, that the natural and inevitable extension of the principle at work would ensure that rather than being treated as private property, businesses reclassified as “public accommodations” would be treated more like public property, that the greasy snout of politics eventually would stick itself into every last precinct of what had been considered the sphere of privacy beyond the public sector.

As it turns out, both sides were right.

That last sentence undermines an otherwise near-perfect exercise in punditry. It’s impossible that both sides could be right, by the very nature of things. Either a “mom-and-pop diner” is private property or it isn’t; you can’t have it both ways. Williamson’s desire to find some way of accommodating two inherently contradictory positions is untenable. It expresses a desire not to offend that the conflicting demands of the “two sides” have made impossible.

The politicization of commerce didn’t start with the Civil Rights Act of 1964, of course. It has much deeper roots than that. But every stroke in that direction has weakened the most important protection of individual rights this country possesses: the principle of unfettered private discretion over one’s private property.

And every last speck of it was deliberate.

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”Bad law” is an envelope that subsumes many more specific sub-categories. However, laws that should not have been made in the first place because they infringe on private rights are surely included therein. The problem here is twofold:

• A strong consensus among the citizens that “something must be done” about some situation;
• Politicians’ eagerness to politicize whatever they can get their claws around.

When I wrote about the importance of the black market a few days ago, I thought principally in terms of specific goods and services that political forces had chosen to ban, control, or restrict by regulation. Yet there’s a form of “black market” that’s arisen in response to supposedly well intentioned “anti-discrimination” statutes. It poses the greatest of frustrations to the politicizers, because it’s inherently beyond their reach. It’s the exercise of “consumer discrimination:” individuals’ personal decisions to live here rather than there, to work at this firm rather than that one, and to patronize or not to patronize a commercial establishment according to the personalities and characters of the frequenters thereof.

Is there a racial correlation? Of course. Is that deplorable? Not necessarily. Think about it:

• Would you willingly drink in a tavern whose other patrons habitually view you as hostile?
• Would you willingly work among persons who consistently treat you with contempt?
• Would you choose to live in a neighborhood overwhelmingly populated with such persons?
• Had you the means to avert all those conditions, wouldn’t you use them?
• Would the skin colors or ethnic heritages of those hostile, contemptuous persons matter to you?

Only a completely totalitarianized nation can overcome “consumer discrimination.” It must dictate every decision made by every one of its subjects. It must leave them no power to resist. It must punish attempts to deviate so surely, swiftly, and harshly that the very thought of nonconformity is all but erased from the nation.

I doubt there are any left-liberals among the regular readers of my screeds, but if there are, tell us all, please: What do you, whose political allies are constantly screaming that “the personal is the political,” propose to do about any of that? And what will you say when the goring of oxen gets around to yours?

Think it over.

Unpleasant Necessities Dept.

It saddens me to need to take up cudgels against a stance taken by a dear friend. Yet intellectual honesty and loyalty to my own convictions has made it necessary.

Before going any further, please read this piece at Adrienne’s Corner. Settle yourself and your own opinions about the incident described and the reactions to it you’ve just read.

I hold no brief for Alex Jones – in fact, I’ve never read his site or his writings – so I’m coming at this without any personal allegiances to defend. My quarrel is over:

1. Local police departments possessing and deploying military-grade hardware that private citizens are forbidden to have;
2. A law enforcement officer disparaging “well armed” “constitutionalists” to an arbitrary audience;
3. Treating the rule of law, a critically important and almost wholly misunderstood principle of ethical and constitutional theory, as if it requires each of us to submit to any and every “law” some legislature hurls at us without resistance.

In my opinion, all three of the above matters are despicable. If what I’ve read here has been accurately reported, then this sheriff has displayed an unacceptable degree of contempt for one of the most important developments of our time: the formation of militias of private citizens in the hope of curbing the rampant overreaching and lawlessness that characterizes contemporary American governments.

The MRAP vehicle itself is of little concern, but we may legitimately ask: What other weapons of war, forbidden by “law” to the general public, are in the hands of the Spokane police department? Is it not clear that the whole point of the Second Amendment is to insure that citizens must always be able to arm themselves well enough to resist tyranny – that the people shall always be capable of putting down an abusive government? Yet there are a myriad “laws” that forbid the general public to own the very weapons of war being distributed to local police!

As to this deputy sheriff who refers offhandedly to “well armed” “constitutionalists” as a threat to him and his, that’s what they’re supposed to be: A force that can punish tyranny, that can react to abuses by the organs of the State with sufficient power to redress officially perpetrated injustice! If they were no threat, what other influence would exist to curb the excesses of agents of the State? What point would there be to citizen ownership of weaponry? Deer hunting? Alongside that, a man whose overriding concern is his personal safety does not deserve to wear a badge of office – especially not that of a lawman.

Finally, that paramount, widely misunderstood conception of American governance: the rule of law: That principle does not mean that we must all submit meekly to whatever “laws” are imposed upon us. Consider the Fugitive Slave Act for one example; consider New York’s “SAFE” Act for another. It means that agents of the State are compelled to obey the laws to the same extent as the citizenry – that a “law” that creates a legal distinction between private citizens and government agents is therefore invalid. That’s constitutional theory in a nutshell – the very reason we have a Constitution in the first place!

The critical question is and has always been:

Does an agent of the State have the privilege of breaking one law to enforce another, without penalty?

Because if he does:

• The slaughter of Randy Weaver’s family was perfectly acceptable;
• The slaughter of the Branch Davidians in Waco was perfectly acceptable;
• The murder of John Singer to enforce a law against home schooling was perfectly acceptable;
• Indeed, any deed by any agent of the State, at any time and place and under the color of any “law” whatsoever, is perfectly acceptable; the agent cannot be penalized for it.

Now, as to some of the other observations made in support of this sheriff and his deputies:

• Yes, it is unwise to confuse local law enforcement with the federal government: You are in more danger from a government near to you than from one far away.
• Concerning “psychotic nutjob Alex Jones:” As I said, I hold no brief for the man and have no acquaintance with his writings. But remember always that the strengths and weaknesses of the speaker cannot be transferred uncritically to the subjects and arguments he addresses. (Alternately, “even a stopped clock is right twice a day.”) It is essential to divorce arguments and observations from the personalities of those who make them.
• Having joined (or not) the military, a police force, or any other agency of the State has no bearing on one’s rights as a citizen, nor on the freedoms to which he is entitled. Inversely: Does honorable military service or voluntarism confer extra rights on an individual? Would you excuse a man of a serious crime, for example armed robbery, on the grounds that he had a sterling record in the military and was a volunteer to the local fire department?
• The term “right-wing fringe lunatics” is merely a slander of unnamed persons whose stances could well be exactly the one stated here. It is not a refutation of that stance.
• That other lands suffer even worse governments, and even worse abuses, is irrelevant to abuses of power here in the United States. Foreign tyranny cannot excuse the excesses and lawlessness of our own. If it were so, we would be required to reform the entire world before acting on events in our own domain.

Food for thought.

Law, Lethality, And The Watchmen: A Problem Of Processes And Principles

“It is capricious to treat similar things differently.” – Associate Supreme Court Justice Potter Stewart.
“It is capricious to treat different things the same.” – Associate Supreme Court Justice Potter Stewart.

Now and then, it seems that only a complete outsider can bring order and rationality out of the chaos and emotion rampant in a set of publicly inflammatory incidents...or a pair of them.

These past few months we’ve watched the unfolding of two partly similar, partly dissimilar cases of civilians dying at police hands: that of Michael Brown of Ferguson, Missouri, and that of Eric Garner of New York City. The foofaurauw over those two cases has risen to deafening levels, such that quite a lot of persons are turning off their televisions rather than be bombarded by any more of it.

The cases are similar in that:

• A large black civilian died at a white policeman’s hands in each of them.
• In both cases, the police involved have been accused of an illegal use of deadly force.
• In both cases, black racialist mouthpieces have incited “protests” – i.e., riots – over the incidents.
• In both cases, a grand jury has returned a verdict of “no true bill:” i.e., it has declined to indict the cop(s).

The cases differ in that:

• Officer Darren Wilson had attempted to question Michael Brown in connection with an extremely recent petty theft involving the violent intimidation of a store clerk; Eric Garner’s arrest was over the sale of untaxed cigarettes on a Staten Island thoroughfare.
• In the Brown shooting, the evidence strongly demonstrates that decedent Brown physically attacked Officer Wilson, at one point trying to wrest Wilson’s gun from his hand; in the Garner case, four New York City policemen brought about Garner’s death with a chokehold in the course of arresting him.
• There is no video evidence of the Brown / Wilson confrontation; there is video evidence of the Garner arrest.
• Ferguson, Missouri is a predominantly black city; Staten Island is overwhelmingly white working-class, with a large population of New York City police and firemen.

It’s been said that a white cop will never be tried for killing a black man, particularly a black “youth.” It’s also been said that a Staten Island jury would never dare to indict or convict a New York City cop, regardless of the facts of the matter. Yet the matter goes beyond sentiment, including racially oriented sentiments and biases, into a realm only one commentator has even brushed against to this point:

[Garner’s] initial crime: Selling “looseys” — individual cigarettes — in violation of NYC tax law. When you pass a law, however trivial, you are providing an opportunity for police to use lethal force.

Ace’s brief analysis follows from that:

Did Eric Garner deserve to die? No. The crime that began all this was selling "Loosies," single cigarettes out of the pack, in defiance of the state tobacco tax laws and all the other nonsense laws they throw on people about only selling things in their original packaging. Minor shit. Nonsense.

And yet, he defied police orders when they attempted to arrest them. When they tried to cuff him, he defied them again, pulling his arms away. He decided, as a Jury of One, that the law was silly and he would not be being arrested today.

I can't entirely blame him for feeling that way, but I know that if the police attempt to arrest you for a law which you are in fact breaking, even if you think it's a minor harassing sort of law, you do not have the right to resist arrest.

What followed is what follows in all resisting-arrest cases: some escalating violence as the police attempt to physically impose their will on the noncompliant suspect.

Some number of such situations will result in the death of the suspect.

The initial problem – i.e., that the law in question defines an offense that many of us, perhaps even all of us, believe to be absurd, even fundamentally unjust – is beyond our reach except by recourse to a process that has proved capricious, intractable, and maddeningly frustrating. Once it’s in place, its very existence opens the door to violent police / civilian confrontations in the process of investigation and / or arrest. As Ace has noted, some percent of those confrontations will result in serious, perhaps fatal harm to someone.

The next problem is that of principle: the principle of proportionality.

It’s the case, de facto if not de jure, that a near to indefeasible presumption of “lawful action in the performance of public duty” is conferred upon a policeman accused of an unreasonable or disproportionate use of force. It takes irrefutable evidence, multiply confirmed, to get that presumption set aside. Granted that the “blue wall of silence” is often a factor in such cases, an accused cop can always claim that in the situation he faced as it unfolded, the only way he could see to discharge his duty was the approach he took, and that any other cop placed in that situation would have reacted in the same fashion. Yet when the offense in question appears trivial and non-violent, onlookers will want to know why deadly force is permitted in the enforcement of such a law.

However, the law makes no distinctions among varieties of penal offenses. All arrests occur under the presumption that the arrestee is legally required to submit to the justice system without resistance. Moreover, if the law were to attempt a categorical distinction – say, between misdemeanors and felonies, or between non-violent and violent crimes, such that potentially lethal force may only be employed in an arrest for the latter sort of crime – it would result in the perpetrators of the former sort being legally permitted (and often effectively able) to resist arrest, perhaps by killing the arresting officer. Think about it.

Glenn Reynolds’s take on this problem:

That’s why I favor fewer laws, not more.

...is my own...yet as long as there is government, there will be laws that criminalize non-violent offenses such as tax evasion and entering the U.S. illegally. Absent the total privatization of all judicial and penal processes – i.e., anarchism – there isn’t much that can be done about it.

What we are left with is an inherently imperfect and imperfectible arrangement in which Juvenal’s question Quis custodiet ipsos custodes? is ultimately unanswerable. Trust the police unquestioningly? Unacceptable. Hold them accountable for never injuring a civilian who hasn’t yet been convicted of a violent crime? Unworkable. No position between those poles can be defined to a degree of specificity that would eliminate all possibility that someone, uniformed or otherwise, will get away with murder.

Life as fallible men trapped under the veil of time is like that.

(Cross-posted at Liberty’s Torch.)

The Sickness At The Heart Of Contemporary Conservatism

With all the lambasting I do of the Left, I sometimes forget to be “fair and balanced.” Mind you, that’s not to imply that the Right is equally sinful, or in the same ways. But self-nominated conservatives are far from stainless representatives of the True, the Good, and the Beautiful.

Have a gander at the following clinker, emitted by Kevin Williamson in the middle of a column in which it’s entirely gratuitous:

The Libertarian party should hold its convention at the Boot Track Café in Loving County, Texas, the least populated place in the United States; the café is closed at the moment, but I am sure that they would open it up to give the Libertarian party a place where its members — both of them — can be lonely together.

Oh, how clever. And how utterly irrelevant, mean-spirited, and small-souled. Do you suppose Mr. Williamson is aware that the most popular Republican now in federal office is libertarian Senator Rand Paul of Kentucky? But that might require that he confront data that doesn’t conform to his prejudices.

I’m getting rather sick of this garbage. I hear a lot of it from so-called conservatives, most of whom can’t even articulate what conservative means. Yes, the LP is small, far smaller than either major party. But do you suppose Mr. Williamson will be happy to be reminded of his cited statement the next time a Republican candidate loses by a small margin? Do you suppose, mindful of the LP’s trivial size, that he’ll refrain from castigating the Libertarian candidate for “stealing” votes from his partisan preference?

I left the LP because the persons rising to the leadership of the Party struck me as uncongenial and impossible to work with. But the core libertarian principle –i.e., that individuals have inalienable rights that no one may legitimately invade or infringe – remains a staple of my convictions. Within its sphere of application, it is unchallengeable...and never explicitly challenged, except by those who proclaim that “only might makes right.”

American political conservatism has been trending ever more strongly toward libertarian positions. This is a notable development, inasmuch as the heart of the conservative world view is a firm attachment to existing institutions and methods, many of which imply the exact reverse of inviolable individual rights. Yet there is important explanatory material here, for a political family’s most threatening competition comes from those whose principles and positions are closest to its own.

(No Democrat who loses his bid for office has ever blamed it on the Libertarian candidate. Food for thought.)

But if you want a really revealing look at the sickness at the heart of conservatism, consider how little conservatives really understand about the Rule of Law. John Hayward’s recent column provides a starting point:

Not only is the Rule of Law a hollow phrase in America today, it lacks the proper intrinsic weight. Even the most hideously savage regimes have laws, and they bloody well expect everyone to follow them, Or Else. The Islamic State has all sorts of laws, with divine authority cited for many of them. They’re even minting their own currency these days. If you know absolutely nothing else about a particular society except that it features absolute obedience to the Rule of Law, I suggest asking a few more questions before deciding to purchase a summer home there.

Yes, indeed. In particular, ask this one:

Are government agents permitted to break one law in the course of enforcing some other law?

...and demand a yes or no answer – unqualified.

What’s that? You want to know what I have in mind? How about just about everything? For example, the Constitution, the Supreme Law of the Land, explicitly recognizes and guarantees certain rights of privacy and property in the Fourth and Fifth Amendments. Yet government agents routinely violate those rights for “law enforcement” purposes in the enforcement of other laws: everything from municipal zoning ordinances to the income tax and the War on Drugs. Indeed, we’re expected to surrender those rights upon request when a gaggle of myrmidons needs our property for a “stakeout;” recent developments in California have made this plain.

The usual excuse is “compelling government interest.” But under the theory behind the Constitution and the state charters, government, an agent with delegated powers, can have no interests of its own. It exists solely to discharge the responsibilities delineated for it in those documents, and for no other purpose.

A conservative who waves this aside to make room for his favorite intrusion on our rights – perhaps by saying something like “We’ve got to be practical” – is no friend of freedom. Nor will he rise to defend freedom when his personal ox is gored.

Quoth Louis Thiers:

Either rights exist, or they do not exist. If they exist, they involve absolute consequences...Furthermore, if a right exists, it exists at every moment. It is absolute today, yesterday, tomorrow, the day after tomorrow, in summer as in winter, not when it pleases you to declare it in force.

I have no problem with a conservative who’s willing to accept that statement...but far too few self-styled conservatives are so willing. It might threaten their campaigns against drugs, sodomy, or abortion. It might make it difficult to fund their next military expedition! Can’t have that.

Small wonder conservative commentators so frequently slather contempt upon libertarians and libertarianism. They usually know, in their heart of hearts, that their positions contain quite a lot of contradiction, and they’d rather not have us point it out...especially when the powers and perquisites of high office are at stake.

ADDENDUM: Don't bother to comment if you can't do so without insulting me. Don't bother if you can't grasp why unenforceable laws are a bad idea. And especially don't bother if you think agents of the State should have the privilege of breaking laws that bind the rest of us. As I've said more than once, I'll entertain intelligent arguments only. Either play at my level or play with yourself...a practice I'm told has its devotees.

(Cross-posted at Liberty’s Torch.)

A Question Of Public Deportment

By now, the entire country knows what’s happened in Ferguson, Missouri in the wake of the “no true bill” decision by the grand jury that sat on Officer Darren Wilson’s fatal shooting of giant thug Michael Brown.

I had a predictable reaction to the rioting and looting:

You can take the savage out of the jungle,
But it’s much, much harder
To take the jungle out of the savage.

I claim that the videos that have surfaced since the disorder began support that evaluation, and no other.

---

Chiefest among the nominally nonviolent obscenities of this affair are the words of His August Majesty, Barack Hussein Obama, first Emperor of the United States:

That this man should have the gall to stand before an audience and prattle about the rule of law – he who routinely flouts the law! – is a blasphemy beyond my power to adequately condemn. That he should call the rioting “an understandable reaction” – he who accused the police of “acting stupidly” in the Henry Louis Gates matter, without having even a superficial acquaintance with the facts! – recalls Maxine Waters’s defense of the Los Angeles rioters after the acquittals in the “Rodney King” trials. Has there ever been a less sincere, more barefaced liar in any American public office, much less in the Oval Office?

America, your greatest shame isn’t allowing Obama the presidency. It’s having returned him to it.

---

But let’s not dwell on the present when we have the past and future to address. After all, they’re so much bigger!

Time was, there was no hesitation on the police’s part to enforce noncontroversial norms of public conduct. They would routinely tell “undesirables” to “keep moving.” Nor was there any unease among law-abiding citizens about the practice. It was well understood that we would grudgingly tolerate much that went on behind closed doors that we could not countenance in public. Absolute intolerance of public misbehavior expressed an understanding of “camel’s nose under the tent lip” dynamics: a “broken window theory” of public conduct that reached well beyond vandalism and random disorder.

The breakdown, as always, started with little things. Littering. Public nuisances such as loudly played radios and boom boxes. Jostling on crowded sidewalks. Much followed from the mistaken tolerance of such behavior – a refusal by ordinary citizens to haul the offenders up by the scruff of their necks and compel penance and redress – that few predicted at the time.

We were opening the door to savagery in the streets. Some of us saw it coming and said so. Not enough Americans listened.

Incentives to savagery won’t affect everyone equally, of course. Those who responded by “acting out,” in the common parlance, were already predisposed toward such conduct: the sullen, the wrathful, the violently inclined previously held in check by a sense that they’d never get away with it. That the great preponderance of them are Negroes should surprise no one. What other demographic cohort has systematically been told that it’s “owed,” that “Whitey is holding you down,” that “justice” demands the mulcting of the innocent as “reparations”...and of course, “no justice, no peace!” -- ?

No one can hear such a gospel year in and year out without reacting to it. A hefty fraction of American Negroes have internalized it. Thus we have reached a situation quite similar to that of Muslims. It’s often said that, whereas the radical Muslim wants to behead you, the “moderate” Muslim merely wants a radical Muslim to behead you. Similarly, whereas the black rioter wants to loot your store and burn it down – assuming he gets the order right, that is – many a “peaceable” black merely condones such conduct as “an understandable reaction.”

Needless to say, this is not a formula that will restore order to America’s cities.

---

The violence will continue. It’s likely to intensify, as the public reaction to it has been hesitant at best. Why, for example, have so few affected business owners not organized a private militia to guard their establishments? Why has no governor acted to arrest and confine those openly exhorting the “protesters” to violence and vandalism, as is licit under the doctrine of incitement to riot? Why has the president not federalized the National Guard nationwide and sent it to the sites of rioting and looting with orders to shoot to kill?

Given the identity and character of the president, I doubt we need an explanation for that last point.

Would anyone care to dispute John Derbyshire’s “The talk, non-black version” today?

There’s more and probably worse to come. Stay tuned.

(Cross-posted at Liberty’s Torch.)