The backdrop is this… A small Lutheran school in Michigan (the Hosanna-Tabor Evangelical Lutheran Church and School) hired Cheryl Perich to teach many subjects, including theology. After a semester, she developed narcolepsy and said she couldn’t show up for work for a month after the Christmas break. The kids would just have to wait.

But in this competitive market, failing to deliver educational services could be financially devastating, not to mention very detrimental to the kids. So the school hired someone to take her place. When Perich finally showed up for work, she sensed that she had been replaced and prepared a disability lawsuit. The school tried to give her benefits in exchange for resigning, but she refused. So she was finally fired for insubordination and causing disruption.

It’s not a particularly unusual case. Businesses face this sort of thing all the time. The way the law works, businesses are routinely blackmailed by disgruntled employees who demand to be paid, even though they aren’t wanted. It’s beyond me why a person would want to work at a place where he or she is not wanted, but that’s the way it is. And the law, citing their “civil rights” to other people’s money, usually comes down on the side of the worker.

The EEOC decided in favor of the Perich, but the school persisted, and the case went to the high court. Here the justices delivered a surprisingly sensible decision on interesting grounds. The Constitution says that the government can’t interfere with religion. Perich was teaching religion at a religious institution. For the government to demand her reinstated, it would be a clear imposition on this institution and an obvious violation of the First Amendment.

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so,” said the court, “intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

Darn right. But wait! What about her “civil rights”? The court said that whatever the employee’s legal rights would be in a normal commercial institution, they can’t possibly apply in the case of a commissioned minister of a religious institution. Otherwise, we would have the government effectively deciding who must or must not be a minister, which obviously contradicts the whole point of the First Amendment.

The language of both the majority and concurring opinions makes a series of uncommonly sensible points. The concurring opinion by Samuel Alito and Elena Kagan points out that it is part of Lutheran teaching that disputes be handled within the community and not be taken to secular courts. But this teacher, Perich, totally disregarded this core principle and immediately started threatening the school with a lawsuit.

Your eyes just pop out to read the court wholly endorsing the Lutheran view: “Hosanna-Tabor discharged the respondent because she threatened to file suit against the church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails.” For courts to interfere “would dangerously undermine the religious autonomy.”

Again, darn right.

But you know what the problem here is? The court wrapped its defense of freedom here in clerical robes only. In order to enjoy the autonomous right to hire and fire, you have to be a religious institution, and it has to pertain to someone who is teaching, however little, some aspect of doctrine. That’s the right decision, but why shouldn’t the same principle apply across the board to all commercial institutions and, indeed, to all private institutions? Why should religious institutions be the exclusive beneficiary of a laissez-faire policy?

All businesses, all nonprofits, all private clubs, all neighborhood associations have internal policies and should enjoy the right to manage their own affairs without government intrusion. To impose a government plan on their labor policies is a serious compromise of rights and liberties, which must always include not only the right to associate but to disassociate.

The critics of the case worry that the decision is too broad, so broad that the court didn’t even bother to define what a minister is. The critics are completely wrong. This court decision is the right one, but the problem is that it is too narrow: In the name of freedom, all privately owned groups should be granted the same right to manage themselves.

Interestingly, this case even has implications for the current political war over Mitt Romney’s activities at Bain & Co., a private equity firm that specializes in corporate restructuring. Its work can result in either profits or losses, expansions or closings. People are hired, people are fired. Who decides? The owners and managers do — in response to market trends — so it should be always and everywhere in a free society.

Newt Gingrich, apparently, doesn’t like this idea. He calls Romney a corporate raider who needlessly puts people out of work — as if Gingrich knows better than the stockholders how to run a company.

A particular issue for Gingrich concerns a steel mill in Kansas that Bain was instrumental in closing, leaving massive job losses behind. Hello? Steel? Its production was once integral to the U.S. economy, but those days ended some 30 years ago when overseas companies demonstrated that they could do the same thing at a fraction of the cost. Is Gingrich really suggesting that every means should be used to keep steel plants open, even if it means looting American businesses and consumers who are forced to pay the highest possible prices for no good reason?

This way of thinking puts Gingrich on the side of Cheryl Perich: against the rights of the property owners. Just as the Supreme Court said, such a system would involve massive coercion against people and intolerable intrusions into the private affairs of others.

Whether it is a tiny religious school or a multinational corporation, up with freedom of association and freedom of disassociation! That’s the way liberty works. Its genius is its capacity to adapt the economic environment to a changing world, so that we stay on the path of growth to support rising living standards for humanity. The stasis of a socialist, state-run economy is not an option in today’s world, and neither is the economic stagnation that comes with national protectionism and special privileges for workers. You can’t have genuine profit and expansion without the possibility of losses and plant closings, and without the owners of institutions having control over who can and cannot get paid for services.

What applies to the Lutheran school should apply to every sector of society that is privately owned, whether or not their workers are called ministers. It is not only religion that needs protection against government interference. Everyone does. Granted, this would be a gigantic step in the right direction.

Regards,

Jeffrey Tucker

Implausibly, Freedom Gets a Boost was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

We’d only been trying to help. We were passing through Houston on our way from Acapulco to the Agora Financial Symposium in Vancouver.

We’d opted out of the Rapiscan irradiation machine and so had to be felt up by an agent. We meant to call attention to how absurd the entire security theory was by playing the part of compliant victim with scorn in his eyes. So we slowly stripped until we were told to stop. We only got as far as unbottoning our shirt.

Our host in Acapulco had been Jeff Berwick of The Dollar Vigilante. Jeff had been to something like 140 countries in the past few years. He’d sailed his own boat to quite a few of those and only used a plane after the shipwreck. He had found the closest thing to freedom in agreeable surroundings in Acapulco.

“The U.S. is toast, amigo,” he’d told us, “You need to take advantage of your status as a mobile, contract internet writer and get out while the getting’s good…

“And Canada is even worse, by the way.”

Jeff wasn’t kidding, especially about that last part as I would discover upon entering Canada today. (More on that later).

We could tell things had gotten a lot worse with the border patrols this year from the very start of our international travels several days ago. The TSA thug who checked our passport on the way from Las Vegas to Acapulco was a hatchet-faced twentysomething with a buzzcut. His eyes bulged slightly but he kept them hooded as he looked back and forth with suspicion between our passport photo and us. He reminded us of a lizard: predatory and untroubled by higher thought.

After twenty seconds of the back and forth reptilian gazing, we inclined ourselves slightly toward him and slowly raised an eyebrow. He waved us through.

“Welcome to freedom,” Jeff had told us on our first day in Mexico. He was spot on there too. If there was something you couldn’t do in Mexico–as long as you didn’t molest anyone else–we certainly didn’t discover it. Relevant to this part of the story is how spoiled Mexico had gotten us. In only a week we’d gotten used to not having to worry terribly much about the state’s goons telling us how to behave.

Then we made the mistake of reading some quotes from Albert Jay Nock among others in Jeffery Tucker’s Bourbon For Breakfast en route between Houston and Vancouver.

The personal freedom experienced in Acapulco…reading hours of anti-state musings…and then being faced with state thugs at a couple of borders. It was a dangerous mix. By the time we landed in Canada, we were fairly seething. Good thing we hadn’t been drinking too.

After telling us to button our shirt back up the Houston TSA agent asked if we wouldn’t rather have him feel us up in private.

“No, no…right out here is fine,” we said.

He instructed us to hold our arms out to the side with palms up and then he began. We tried our best to maintain eye contact the entire time. Some people stopped to watch.

But that’s nothing compared to what happened when we actually got into Canada. If the U.S. is bad, Canada is worse.

At least in the U.S. they pretend to care about things like personal sovereignty. There remains outrage over things like the TSA and more nationalization of medical services.

Mexico seems to have real liberty where it counts. (If it weren’t for the U.S.-led Prohibition-style war on drugs, Mexico’s cartels would be no more powerful or violent than Rite Aid and Mexico itself could be a paradise.) The U.S. pays liberty some lip service.

In Canada we find no such sentiment about liberty. It seems things just get worse the farther north you go, as if freedom can’t stomach the cold.

Canadians have gleefully committed their lives to the care and direction of the state as far back as anyone cares to remember. Perhaps that long-nurtured nationally socialist spirit is why Canada’s border guards are the scariest we’ve yet encountered.

They were to a one young, wearing bullet-proof vests over their crisp uniforms and serious as heart attacks. If the USA’s thugs seem a little bumbling as they do their government’s dirty work, the Canadian versions make up for it. Those young men and women processing passengers gave us the impression that they’d just as efficiently process undesirables into concentration camps.

It was 1 am local time when we had our turn with an unsmiling Canadian border guard. Perhaps we didn’t answer snappily enough. Perhaps we were a bit surly after having read those selections from Nock. Whatever the reason, we were marked for further processing, something we didn’t find out till after waiting another 45 minutes to get our luggage. At that point we were not in the right frame of mind to deal with state agents docilely.

And sure enough there was trouble.

“Sir, you seem to have a problem with me,” said the not un-pretty customs lady in the backroom after she’d asked us the same questions the first customs agent had asked us an hour ago.  We were having tremendous trouble hiding the anger in our voice even though we’d managed to speak slowly and quietly so far. We probably looked pretty wound up too, like someone ready to swing at a square off in a bar.

“I don’t like being treated like this,” we answered, “Don’t you think I should be bothered by it? Doesn’t it bother you? The way the state is bringing down the hammer lately?” Stupid questions, especially the last one.

We had already long ago resigned ourselves to going to jail and being sent back to the U.S. So we continued, “I am going to the same conference in the same hotel I’ve been coming to for the past three years. Why treat me like this now? Why treat anyone like this? I mean, here I am trying to go about my business and now anything I say wrong can land me in jail.”

“Sir, I don’t know you. You don’t know me. There’s no reason to be upset with me,” she said.

Ah, but there was. While we rant about the state, it all really comes down to individuals. It’s individuals who have rights, not groups. It is individuals who are are responsible for their actions. She was enforcing the bad laws, imposing the duty, the fines, the forced detention. She was the low-level muscle helping run a protection racket for the state.

She took our passport and U.S. resident alien card and disappeared into a secured office with a couple of her cronies. She returned about five minutes later and told us that we were free to go.

“So why did this happen?” we asked. “What did I do to call attention to myself and make you guys want to detain me? Is there a way to avoid this and go about my business (without molestation) in the future?”

“No, nothing,” she said, “This was random and we have the power to stop anyone we wish upon their entry into this country.”

We couldn’t stop hearing Jeff’s words in our head:

“Give up the green card. Go live for cheap in Asia or Latin America and live your life as free from government interference as you can. Stay the hell away from the U.S…Canada too. And Western Europe. What’s going on in New Hampshire with the Free State Project is exciting, but I don’t know if it’s worth sticking around when you have the opportunity to get out entirely.”

We’ve been entertaining the same thoughts on expatriation for years, with the same sorts of destinations in mind. We’re not under the delusion that any of these places are perfect. But the little bit we’ve seen tells us that they are…different…And in the ways that matter to us better.

Albert Jay Nock wrote in Memoirs of a Superfluous Man:

“As a general principle, I should put it that a man’s country is where the things he loves are most respected. Circumstances may have prevented his ever setting foot there, but it remains his country.”

Too true. And what a shame it would be for circumstances to allow a man to live where it suits him and for him to remain instead where it doesn’t.

Fun with Customs and Border Guards in the U.S. and Canada was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

Market for Liberty imagines a totally free society; one with no government intrusion whatsoever; one in which the free market is left to respond to the demands of individuals, without recourse to institutionalized coercion — implied or actual. Is such a stateless existence even possible, much less preferable? Or, as so many contend, is it merely an academically contrived utopia?

Morris and Linda Tannehill address all the usual fears and protestations that a truly non-governmental — i.e. anarchist society — conjures up.

Whenever there arises in conversation the mere suggestion of a totally free, laissez-faire market, the possibility that human beings might even be able to survive (much less thrive) without the safety net of State control, apologists for “benevolent government” invariably step atop their soapboxes and ask:

“Yes, but who will provide education for the masses, if not the public schools?” or “Who will care for the sick and weak, if not the public hospitals?”

Indeed, these are questions that deserve thoughtful, honest answers. But these questions assume realities that are not in evidence.

They suppose that “the public” (i.e., the state) actually has money to “provide” these services, rather than, as is actually the case, first having to expropriate (steal) it from private, productive individuals. Furthermore, the fallacy of benign governmental control relies on the idea that governments can provide essential services more reliably and cost-effectively than the private sector.

In other words, the government’s obligation to provide essential services is more reliable and effective than the private sector’s opportunity to provide essential services. Admittedly, this debate does not lend itself to easy, black and white conclusions.

But as the Tannehill’s argue persuasively, the free market provides solutions that governments would never dream of. “The big advantage of any action of the free market,” contend the Tannehills, “is that errors and injustices are self-correcting. Because competition creates a need for excellence on the part of each business, a free-market institution must correct its errors in order to survive. Government, on the other hand, survives not by excellence, but by coercion; so an error or flaw in a governmental institution can (and usually will) perpetuate itself almost indefinitely, with its errors being ‘corrected’ by further errors. Private enterprise must, therefore, always be superior to government in any field.”

[It is worth mentioning here that corporations acting in collusion with the state are NOT private enterprises as the Tannehill’s define them. They are simply entities that have co-opted the government’s “gun-for- hire” to do their dirty work for them. Think Wall Street “bailout” recipients and their army of D.C. lobbyists. Indeed, think any institution at all that seeks unfair protection or promotion from the state.]

The lines on the battlefield between the comfort of State control and the liberty of anarchy are familiar to all. The State is a protector, one side argues. The State is a prison guard, the other side argues.

• How, the statist is heard to question, might common disputes find resolution without the currently preferred monopoly of the state’s courts?

• What about private monopolies that would ruthlessly jack up prices and bleed us working class proletariats to death?

• By what means might a laissez-faire society offer protection from foreign aggressors?

• How might the personal liberties underpinning the whole system be protected if it were not for the tireless work of the state’s police and its myriad other law enforcement agencies?

• Indeed, the statist continues, how would “the law” itself even come into being, and in what shape would it find application, in the absence of the all-knowing, all-powerful state?

The Tannehills address these anxieties thoroughly and logically. “Freedom is not only as moral as governmental slavery is immoral,” they write, “it is as practical as government is impractical.”

Discussions criticizing the state’s myriad shortcomings and follies are many. The Tannehills’ Market for Liberty takes the extra step in providing viable, concrete solutions to state-sponsored dilemmas. The Free Market, they argue, can correct the State’s tendency toward costly excesses, and can do so peacefully and voluntarily, simply by following price signals from the market itself.

Market for Liberty is, for all intents and purposes, a very real, practical solution set to those most commonly presented excuses for acquiescing to governmental authority. The government is not merely a “necessary evil,” the Tannehills argue. “It is necessarily evil.”

Of course, Market for Liberty does not project a utopia in which acts of violence simply disappear and where every individual immediately sets off on a long road to perfection. Rather, the authors illustrate how individuals acting in their own self-interest, coming together to engage in mutually-beneficial exchanges, are thus incentivized to act with honesty and integrity.

“The history of governments always has been, and always will be, written in blood, fire and tears,” the Tannehills assert. In Market for Liberty, they show how freedom is not only an alternative to the State, but a far superior one worth, at the very least, our immediate and undivided attention.

Regards,
Joel Bowman
Whiskey & Gunpowder

May 11, 2011

Freedom Naturally: A Review of Morris and Laura Tannehill’s “The Market for Liberty” was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

The Economic Collapse Blog concludes,

We are entering a time of extreme financial stress in America.  The federal government is broke.  Most of our state and local governments are broke.  Record numbers of Americans are going bankrupt.  Record numbers of Americans are being kicked out of their homes.  Record numbers of Americans are now living in poverty.

The debt-fueled prosperity of the last several decades came at a cost.  We literally mortgaged the future.  Now nothing will ever be the same again.

To say that “nothing will ever be the same again” is just pessimistic and unnecessary. We actually can return to the prosperity of the past, by replacing debt and austerity with freedom and independence.

There is no need for Americans to suffer through what European countries are suffering, because nearly all the problems we face are caused by governmental intrusions into many aspects of our personal and economic lives — intrusions by federal, state and local governments. Regardless of the good intentions that the welfare and military socialism statists have in justifying their use of compulsory government powers, what America needs is to cut the shackles of State-imposed dependence, restrictions, regulations, taxation, all those policies of moral relativism that involve violations of the Rule of Law: theft, trespass, denial of Due Process, and other acts of State-initiated criminal aggression.

Freeing Americans includes repealing all forms of intrusive presumption-of-guilt regulations and restrictions that are in place having nothing to do with whether any individual is suspected of any crimes against others. Regulations are before-the-fact demands by the government that presume the individual and one’s business guilty, in which one must submit one’s private personal or financial information to the government to prove one’s innocence. Government regulations and arbitrary restrictions are literally searches and seizures by the government of information that is none of anyone else’s business, and effect in the stifling of everyday citizens’ growth and prosperity.

Ending all personal income taxes, corporate taxes, estate taxes, and capital gains taxes frees people who own or share in the ownership of businesses — i.e. employers and prospective employers — to invest in their own research and development and in the expansion of their businesses, which is the genuine force behind jobs creation, in both blue collar and white collar sectors. Ending all personal income taxes frees people to explore their own ideas and inventions, and to start their own businesses that will employ more people and advance society further. Also, ending all personal and corporate income taxes allows individuals and businesses to donate more of their own money to worthy charitable organizations, like it used to be before the intrusiveness of the government entered the scene and discouraged such charity giving.

Some may respond to such suggestions, “Well, if we do all that, then how will government functions be funded?” My response is: do you mean, how do we fund public employees’ 6-figure pensions, how do we fund all the extravagant public employee salaries that are now on average higher than private sector salaries? Or, for example, do you mean to ask how we fund the federal Department of Education that has done nothing but create bureaucracies and turn American education into a Soviet-style indoctrination camp for State-worship? As far as the federal government is concerned, just about every agency and department in Washington can be eliminated, because they are unnecessary and have been nothing but parasitic and slowing America’s growth and progress almost to a halt.

We also need to be honest about the “War on Terror” and the War on Drugs, which are not wars on terror or drugs, but wars on freedom. The war on drugs has been extremely hypocritical, by going after only “street drugs,” but not alcohol and not prescription drugs, all of which have been just as dangerous and lethal. The war on drugs criminalizes victimless behavior, discourages personal responsibility, and has been a boondoggle for law enforcement agencies through confiscation of private property and through bribery, and has caused a black market in drugs which incentivizes the formation of drug gangs and cartels that leads to increased violence, as well as the corruption of otherwise “good” cops and other government officials. What would happen if we immediately ended the War on Drugs and required individuals to be responsible for their actions and decisions? Do we really need to have costly government “anti-drug” enforcement agencies?

And regarding this “War on Terror,” many of the terrorists themselves have expressed explicitly that their primary motivations for their terrorist acts have been political, and not religious, responding to the U.S. government’s many decades of intrusions on those foreign lands as well as the U.S. government’s intrusive interventionist foreign policy. Even a top U.S. general has recently stated that for every one innocent civilian the U.S. military and CIA murders, ten new terrorists are created.

So, what would happen if we simply just closed all the U.S. military bases on foreign lands and brought all U.S. troops, contractors, and bureaucrats back to the U.S.? Does anyone in his right mind actually believe that there would be more terrorism against the U.S.?

If we closed all those foreign bases and brought everyone home and ended the violence that the U.S. military has been committing against foreigners, why, that would mean that the military socialism and welfare redistribution of wealth from middle-class workers over to defense contractors would have to stop. And, I’d like to ask, just how selfish are those defense contractors, knowing how counter-productive U.S. government aggression in the Middle East has been, knowing that they are playing a major role in making America less safe and much less productive, less prosperous and less free?

And how selfish are these big corporate-statist financial institutions, such as Goldman Sachs, JP Morgan, Bank of America, etc., in insisting that their billions of dollars in bonuses that result from bailouts and quantitative easing continue, at the expense of poor, middle-class workers and producers? How selfish will the parasites continue to be, as America continues to decline economically and morally? How much longer do we need to suffer at the hands of the most destructive of political institutions, that Federal Reserve? Because Americans’ inherent, inalienable rights to trade, commerce and contracts with free, competing currencies have been unconstitutionally squashed by this voracious federal Leviathan, we are all becoming poorer, and America is literally turning into a Third World economy. Which isn’t even an “economy” anymore because of the intrusive crimes of the State — America is a State-owned political prison.

In other words, just how helpful has the federal government been to America’s progress? What would happen if we just eliminated the federal government, and restored to the states their constitutionally-recognized inalienable rights to independence and sovereignty that political criminals have stolen from them in these 235 years of America? Is it possible to have an organized country consisting of independent states, but without a central-planning compulsory federal government? Of course it’s possible — and, for us to survive, it is necessary to make such a change, in addition to the elimination of the theft of taxation, the search and seizure of regulations, and the counter-productive wars on drugs and terrorism, and the sooner the better.

In honestly considering such solutions, one would have to conclude that, without a central federal government and all of government’s intrusions, no one would be able to monopolize territorial jurisdictions, monetary functions or the defense of others. There would be freedom, prosperity, and yes, much more security, and with a further assurance of stability for future generations.

Regards,
Scott Lazarowitz
Whiskey & Gunpowder

January 28, 2011

How to Replace Austerity with Freedom, Independence and Prosperity was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

The drafting was done in 1787, and the needed nine States had ratified it by June 21st, 1788, so the Constitution became supreme law on that day. Then on March 3rd 1789 Congress opened its doors and the following month George Washington presided. It’s very interesting to notice what the new Congress did, in its first session, from March through September of that year.

It committed six acts, before going home for the winter in September. See if any of them give you warm, fuzzy feelings; and in a moment I’ll focus on the sixth, because of its huge importance.

First came some administration; deciding on how oaths of office were to be taken. Not too much there to bother us.

Second was the “Hamilton Tariff,” under which revenue was to be raised. So the second-ever Act of the US Congress was to arrange for the confiscation of property. Sure, it was Constitutional — it was a set of tariffs, imposed on certain imports; some must have recalled that it was a tariff on tea that had sparked the Revolution in the first place, so may have wondered whether anything had changed except the geographic location of the thieves. The import duties favored Northern manufacturers by making foreign goods seem more expensive — it was protectionist — and hurt Southerners by making them pay more. From Day One, a division was being fashioned that led after seventy years to open warfare. So the first substantive thing Congress did was to start to set the scene for internal conflict.

Third came an establishment of “Foreign Affairs” — now the Department of State — by which the new government was to execute “policies” towards other nations. If the intention was to have a perfectly uniform policy towards all, that would not have been needed. By establishing one, it was clear there were to be some nations more favored, others less favored. That’s what a “foreign policy” means, and it is ultimately the cause of war and, in our own era, of the unconventional war called “terrorism”; for had there been no foreign policy favoring Israel (recall Biden’s call in March for “no space” between the policies of the US and Israel?) there would have been no 9/11, or if there had been one favoring Palestinians there would have been a “9/11” much sooner and much more devastating, executed by Mossad. So the third Act in the history of the new government was to set the scene for all future external conflict.

Fourth was an Act to set up a Department of War — now euphemized as “Defense” — and that was very logical. You play favorites with other nations, eventually you’ll need to fight some of them. Better get ready.

Fifth came the Department of the Treasury, to take in and account for the collection and spending of the money confiscated by Act Two. It is to this Department that today’s IRS belongs, so I need say no more.

So far, it’s not too hard to detect the beginnings of all the most loathsome attributes of any government: tax, distortion, discord and warfare. This is to what our well-meaning “Constitutionalist” friends want to get us back.

The sixth action of that first session bore fruit on September 24th, 1789 and was the “Judiciary Act” — and it’s notorious and breathtaking. Here’s why.

On its face, its purpose was just to flesh out Article Three, which said there was to be a Judicial Branch in the new government. It had to do with establishing Courts — Supreme, District, Circuit — and government Attorneys, General and less general. But as well as that administrative stuff, the 1789 Judiciary Act declared that the Supreme Court had the power to hear actions for “writs of mandamus” as one of original jurisdiction, and so not to be just a court of appeal. Congress was therefore purporting to grant to its sister Branch a power which Article Three never gave it.

Oops! Right off the bat, in its very first session, Congress therefore tried to do something it was not empowered to do (if you’ll allow for the moment that, contrary to Spooner, the Constitution actually empowered anyone to do anything). In so doing, Congress demonstrated its disdain for the fences placed around it by Articles Two and Five. Very clearly, government today acknowledges no limits on its power; the 1789 Judiciary Act made it plain that Congress never did acknowledge such limits, even in its very first session.

Was this arrogation of power deliberate, or inadvertent?

Either is possible if the Act is considered in isolation, but it wasn’t isolated. While the Constitution was being drafted, Alexander Hamilton and other Federalists had wanted to specify powers for the Judicial Branch, just as the charter did for the other two Branches, and in particular to grant it the power of “Judicial Review,” i.e., to say what is, and is not, valid law. He argued that that is what high courts normally do. However in Article Three no powers were granted to it at all, so as it’s fair to presume that it was not to have zero powers (otherwise, why set it up?) consequently Article Three left them wide open — for unlike the wording of Articles I and II there are no limits or prohibitions named, either. It was a blank check, whose detail could be filled in later.

If Hamilton had had his way and the Constitution as drafted had said something like “The Supreme Court shall have power to decide what is law and what is not law” the new government would have been plainly seen as a dictatorship, and in my humble opinion it would have not had a snowball’s chance of getting ratified; even as it was, that process was no sure thing. So that’s why they left it blank — while the Federalist majority intended all along that such a power should, indeed, be owned by the Judicial Branch so that the new government could (with a little delay, and with its cooperation) do anything it wanted to do, while operating under the pretense of being strictly limited.

So Congress’ 1789 attempt to endow the Supreme Court with a new power (to hear certain cases with original jurisdiction) was not accidental, but deliberate; that particular power wasn’t very important, but it was to test the waters, establish a precedent. If they could grant it one small power then, they could later grant it bigger ones, and so eventually equip it with absolute, law-determining power. Take an inch at once, so as to take a mile later on.

Regards,
Jim Davies
LewRockwell.com
Whiskey & Gunpowder

May 12, 2010

The Eden Myth and the Ratification Con of 1789 was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

“Alright, George Bailey, you’ve got your wish. The public schools were never invented. Now stay calm, and don’t fret about the many strange but freedom-affirming phenomena you’ll encounter as you stroll through a re-invigorated Bedford Falls. Ready?”

Freedom for Taxpayers. Property taxpayers would no longer support a system which even its supporters readily admit must be “structurally improved” [Statist-ese for, “Give us more money”]. Anything in constant need of major improvements, not just routine adjustment, which produces uneducated “graduates” year after year (JayWalking anyone?), for decades on end, is irredeemable, netting very poor investment returns for taxpayers despite huge outlays. Since a sizable percentage of local municipal budgets (usually well over 50%, typically with supplemental “help” from state capitols) is dedicated to school funding, the elimination of this line item will give meaningful property tax relief.

Freedom for Municipalities. In the view of some – though at this point in time not nearly enough – all education is intrinsically coupled with morality, religion, and the reason of life itself. Necessarily it cannot then lawfully be a proper function of government if we’re to be serious about individual liberty and separating church and state. Governmental involvement in matters with religious overtones and nuances including differing worldviews conflicts with the Establishment Clause and state constitutional counterparts. Freed of school budgets, cities and towns will confine themselves to matters within their appropriate purview, generally subjects associated with public safety.

Freedom for Parents. Parents, relieved of a portion of their property tax burden, will have greater disposable income with which they may choose a private school appropriate for their child. Including a home school. Today, families wanting alternative schooling for their child/ren pay two tuitions, one to the chosen school directly, another to the municipality to support the public schools.

Freedom for Students. Relief to students who simply do not want to spend time in school for whatever reason (e.g., attitude, disinterest, safety concerns). Relief from One-Size-Fits-All-ism. How these now-emancipated students will choose to spend their newly-acquired time and freedom will be left to them and their parents. For the student willing to learn there will be choices galore as a thousand points of light evolve following the demise of the public schools. Throughout their history Americans have shown themselves to be both generous and ingenious. From scholarships and tuition assistance (remember, property tax relief will enable all citizens to spend their property tax relief as they see fit, not as government sees fit) to an array of different school types, all manner of ideas will come forth on “what to do with all those children.” To believe otherwise is to concede that we have lost our way as well as our senses of freedom and personal responsibility, and that only overseeing superintendent-esque nannies can save us.

Repealing the truancy and compulsory attendance laws frees students enabling but also requiring them to become personally responsible for usefully filling their time, simultaneously serving as a sobering means of correcting immature attitudes via a dose of reality. Students and parents will of necessity become discerning consumers of those educational services which they desire. Consider this example. A parent/s believes that comprehensive sex education, including awareness of all different perspectives of human sexuality, is an important educational value and that such information should be taught, at all grade levels, to his/her/their child. These parents will choose, through free association and without compulsion, schools accommodating their expressed wishes. While acknowledging the rights of those parents to choose as they may, other parents might avoid those choices, preferring instead other educational values which for them may include emphasis on math & science, fine arts, building trades, mechanics, religious instruction, and so forth. They too will decide through free association and without compulsion. Open choice aka freedom aka liberty will enable each educational consumer to receive the specific educational values which he/she/they seek/s without the application of governmental force upon others who do not share or want those educational choices.

Freedom for Teachers. To those who tsk-tsk the viable idea of doing away with the public schools, they should know that eliminating the public schools will not be the end of education. To the contrary it will encourage genuine learning. In an atmosphere of non-compulsion students who want to learn a chosen curriculum will present themselves before teachers who want to teach. The discipline problems of which teachers complain, including bullying, will largely disappear. Teaching to willing students is a joy unto itself. Having been a teacher in several venues – as seminar instructor on tax law matters to other accounting, tax & legal professionals; as host of numerous client seminars; as a homeschooling parent – I am keenly aware of how fulfilling it is to teach receptive students.

Freedom from Incompetence or Indifference. Every large public school system has its “rubber rooms” (search, “rubber rooms Stossel”) to which incompetent, insubordinate, or dangerous teachers are assigned, at full pay, while their cases for dismissal wend their way through a labyrinth of union contract provisions. Why such rooms? Because in the perverse world of public schools it is next to impossible to get rid of bad teachers. Despite the overriding concern, stated endlessly by politicians, bureaucrats and unions, of how much they all want to “educate the children,” the game is really about protecting government and its employees. Big government types, invariably “led” by Democrats and lapdog teachers’ unions, are the biggest offenders. Bureaucrats and union members have little concern whether children learn or not; their principal worry is their own paycheck. And please, let’s not hear about the many fine, dedicated teachers, blah, blah, blah. Even if true, these teachers are like students and parents: trapped in the grip of the union–big government vise. The fine intentions of these teachers will never loosen this grip; only an adherence to limited government and a commitment to personal responsibility will do that.

Freedom for the Uninvolved. Elimination corrects an inequity visited upon those who have no current direct stake in the educational system. Why should those who have no school-aged children be burdened with the schooling costs of those who do? If you choose to raise children, your obligations include clothing, sustenance, housing, and education. Before setting out, the cost is to be counted. The decision to start a family was yours, not that of your elderly, childless, or empty-nest neighbors. It doesn’t take a village to raise a family: it takes a responsible mom and a responsible dad. As matters now stand your neighbors, not exercising any influence in your family-raising decision, are sent the bill for educating your children. All sorts of rationales are given for continuing this unfairness. They reduce to one: We benefit when all citizens are educated, or in bumper sticker language, If you think public education is expensive, try ignorance. This slogan’s encapsulated arrogance assumes that people are incapable of acting in their own best interests and would forever remain inert until the Nanny State intercedes and affects a rescue, all for their own good you must understand. Who else but leftists sell people for such short money? If those who are inadequately prepared understand that the principal difference between themselves and others who have better prospects, employment, or social standing, is education, common sense says that the former will know what to do.

Freedom to Choose. Each of us has different driving wants and needs; we choose cars accordingly, based on factors which include cost, safety, options, color, type (sedans, wagons, SUVs, minivans, pickups, light & heavy duty trucks, et alia). Yet the choice of schooling, also subject to a variety of factors, is far more determinative of an individual’s life direction than the choice of a car whose life span is a matter of mere years. Freedom prevails when parents and students, acting as consumers, make thoughtful choices for their purposes among competing alternatives with funds that would otherwise have been taken from them and wasted on a scheme that has failed for decades. Even leftists endorse educational choice, but only for themselves. When given the chance, leftists never choose the public option. Obama’s daughters go to private schools, as did Chelsea Clinton, as did Ted Kennedy’s kids. If this is leadership by example, then the people too should be able to choose. “Do-as-I-say-not-as-I-do.”

What is more, genuine educational choice (without a public option) will defuse, at least in the school setting, many of society’s divisive issues, issues brought into the public schools through raw political power imposed on students, a captive, generally powerless audience. Without forced public schooling there would be no more of the seemingly endless battles on church-state separation and courses on human sexuality. Gone and unmissed will be battles over religious songs and symbols, whether religious days special to a particular faith should be recognized as school holidays, refusals to recite the Pledge of Allegiance, prayers at games or graduations. Mandatory sex education and associated hot-button topics such as abortion counseling, creationism, evolution, environ-ism, and countless other subjects which at best are only marginally tangential to core academic subjects, will be dealt with in a manner agreeable to students and parents since they as consumers will be freely choosing schools compatible with their wishes and expectations in these areas.

Tuition will be reasonable as schools will no longer be forced by law to deal with the selfish demands of public employee unions. Rather than serving the interests of their employees and administrators, schools will compete as every other successful consumer service competes, by placing the customer, here parents and students, not employees, as Priority #1. Sometime in the 1980s I heard Lane Kirkland, a then important union leader, speak at an American Federation of Teachers function. After his prepared remarks he took some questions one of which touched on the declining academic achievements of students. His blunt and forceful answer remains with me to this day. Paraphrased, “When children become union members paying union dues, then I’ll care about children’s education.”

Ending educational compulsion will bring freedom and freedom will bring responsibility and accountability. Schools in the post–public school era will be burdened to please their customers, parents and students, if they wish to succeed. Today, failing public schools are neither punished nor eliminated; rather, in the eccentric world that defines the “public domain,” they’re rewarded by being allowed to continue, often with increased funding, in order to “self-correct.” Bailouts may be new to Wall Street & Detroit carmakers, but bailouts have long been a part of failed public school systems.

Tomorrow, we’ll discuss the beneficial effects accruing to the American system of federalism, which will naturally flow from the elimination of public schooling.

Regards,
Paul Galvin
LewRockwell.com
Whiskey & Gunpowder

May 3, 2010

Eliminate Public Schools was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

…

The broadest and most prevalent error requires the most disinterested virtue to sustain it. The slight reproach to which the virtue of patriotism is commonly liable, the noble are most likely to incur. Those who, while they disapprove of the character and measures of a government, yield to it their allegiance and support are undoubtedly its most conscientious supporters, and so frequently the most serious obstacles to reform. Some are petitioning the State to dissolve the Union, to disregard the requisitions of the President. Why do they not dissolve it themselves—-the union between themselves and the State—-and refuse to pay their quota into its treasury? Do not they stand in same relation to the State that the State does to the Union? And have not the same reasons prevented the State from resisting the Union which have prevented them from resisting the State?

…

Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men, generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to put out its faults, and do better than it would have them? Why does it always crucify Christ and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?

…

If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth—certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.

…

Thus the state never intentionally confronts a man’s sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest. What force has a multitude? They only can force me who obey a higher law than I. They force me to become like themselves. I do not hear of men being forced to live this way or that by masses of men. What sort of life were that to live? When I meet a government which says to me, “Your money or your life,” why should I be in haste to give it my money? It may be in a great strait, and not know what to do: I cannot help that. It must help itself; do as I do. It is not worth the while to snivel about it. I am not responsible for the successful working of the machinery of society. I am not the son of the engineer. I perceive that, when an acorn and a chestnut fall side by side, the one does not remain inert to make way for the other, but both obey their own laws, and spring and grow and flourish as best they can, till one, perchance, overshadows and destroys the other. If a plant cannot live according to nature, it dies; and so a man.

…

The authority of government, even such as I am willing to submit to—for I will cheerfully obey those who know and can do better than I, and in many things even those who neither know nor can do so well—is still an impure one: to be strictly just, it must have the sanction and consent of the governed. It can have no pure right over my person and property but what I concede to it. The progress from an absolute to a limited monarchy, from a limited monarchy to a democracy, is a progress toward a true respect for the individual. Even the Chinese philosopher was wise enough to regard the individual as the basis of the empire. Is a democracy, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the rights of man? There will never be a really free and enlightened State until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly. I please myself with imagining a State at last which can afford to be just to all men, and to treat the individual with respect as a neighbor; which even would not think it inconsistent with its own repose if a few were to lie aloof from it, not meddling with it, nor embraced by it, who fulfilled all the duties of neighbors and fellow men. A State which bore this kind of fruit, and suffered it to drop off as fast as it ripened, would prepare the way for a still more perfect and glorious State, which I have also imagined, but not yet anywhere seen.

Henry David Thoreau
(Compiled by Gary Gibson)

December 31, 2008

Disobeying Civilly was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

This American government—what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will. It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. Governments show thus how successfully men can be imposed upon, even impose on themselves, for their own advantage. It is excellent, we must all allow. Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient, by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if they were not made of india-rubber, would never manage to bounce over obstacles which legislators are continually putting in their way; and if one were to judge these men wholly by the effects of their actions and not partly by their intentions, they would deserve to be classed and punished with those mischievious persons who put obstructions on the railroads.

But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.

After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But government in which the majority rule in all cases can not be based on justice, even as far as men understand it. Can there not be a government in which the majorities do not virtually decide right and wrong, but conscience?—in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. A common and natural result of an undue respect for the law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? Visit the Navy Yard, and behold a marine, such a man as an American government can make, or such as it can make a man with its black arts—a mere shadow and reminiscence of humanity, a man laid out alive and standing, and already, as one may say, buried under arms with funeral accompaniment, though it may be,—

“Not a drum was heard, not a funeral note,
As his corse to the rampart we hurried;
Not a soldier discharged his farewell shot
O’er the grave where our hero was buried.”

The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others—as most legislators, politicians, lawyers, ministers, and office-holders—serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few—as heroes, patriots, martyrs, reformers in the great sense, and men—serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it. A wise man will only be useful as a man, and will not submit to be “clay,” and “stop a hole to keep the wind away,” but leave that office to his dust at least:—

“I am too high-born to be propertied,
To be a second at control,
Or useful serving-man and instrument
To any sovereign state throughout the world.”

He who gives himself entirely to his fellow men appears to them useless and selfish; but he who gives himself partially to them is pronounced a benefactor and philanthropist.

How does it become a man to behave toward the American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.

All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution of ‘75. If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counter-balance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is that fact that the country so overrun is not our own, but ours is the invading army.

December 30, 2008
Henry David Thoreau, 1849

Ideal Governance Is The Lack Thereof was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.

But with a woman.

Now don’t get me wrong, I’m not suggesting that women are antithetical to freedom (though that’s undeniably the case for some married men) — only that what really got me thinking about how Americans perceive freedom came from my brief association with a particular lady not long ago. Here’s how it happened…

After meeting up for some late drinks at a local pub, I spontaneously invited a woman I’d had numerous dates with back to my house. Now, this girl had read a lot of my Whiskey & Gunpowder essays, so she knew what I was all about — trucks, guns, motorcycles, hunting, bourbon whiskeys, the whole deal…

So as she followed me home, I really didn’t think anything of the fact that I had four or five hunting rifles leaning up against the back of the sofa in my living room (I’d gone to the gun range the evening before). Frankly, I was more concerned about whether I had anything she liked to drink, the condition of the bathroom, whether there were dishes in the sink — that kind of stuff.

However, the first thing she said when she came in the door and looked around wasn’t any kind of critique of my housekeeping, but rather, upon spying the rifles:

“Jim, how many guns do you NEED?”

It’s Not Freedom if You Need ‘Um

I’m mentioning my date-gone-sour because it’s emblematic of the fact that a lot of educated people who think they’re all about freedom really aren’t — at least not when the chips hit the table. This woman is a perfect example. She’s smart as a whip, degreed, professional, tuned-in and fancies herself a liberty-minded American…

Yet the first thing that jumps into her mind when she sees the trappings of liberty is the quasi-Marxist notion that its exercise should be tempered by the dictates of practical need.

What’s so tragicomic is that I find this kind of thinking to be typical of how a lot of Americans regard freedoms OTHER people find important — but not necessarily those they indulge in themselves. If I’d said to her “How many pairs of shoes do you need?” or “How many pets do you need?” she’d surely have balked…

I once got this same gun question from an uncle of mine, a man of great temperance, education and intelligence. In the ensuing exchange, he suggested in perfect seriousness that it should be determined, by earnest study and analysis, exactly how many guns and of what types an American could ever encounter a need for — and that the law should be modified to restrict our freedom to own guns beyond the dictates of these criteria!

If NEED were the litmus test of liberty, we would cease to be in any way free. And yet, a lot of Americans use this concept (necessity) as a looking glass when it comes to the freedoms their neighbors enjoy. This is disconcerting to me.

But it isn’t even the most insidious way in which a lot of us look at freedoms all wrong…

The “Balance Sheet” Mentality

Today, it’s the tendency of politicians, commentators, advocates on both sides of an issue — and increasingly, American citizens — to distill the debate about any personal liberties to one of numbers. Statistics, not principles, rule the day.

That’s because there’s an inherent credibility to an argument backed by numbers — they are assumed to be impartial. And they are. It’s only when numbers are contorted by people with an agenda (any time they come out of politicians’ mouths, basically) that they become treacherous, and anything but unbiased.

Think about this for a minute. Is there any liberty-based debate in the public discourse today that doesn’t center on an argument about numbers — that hasn’t become merely a contest of “dueling statistics?” The point of those statistics is always the same: To determine whether a freedom makes bottom-line sense in a twisted equation in which liberty is allowed to stand or fall based solely on its mercantile merits…

The smoking debate is a good example. Few are talking about smoking in terms of its intrinsic value as an exercise in personal freedom. Most only talk about it in terms of economics: Mainly, whether the increased costs of health insurance and medical treatment for both active and passive smokers is greater than the profits bars, restaurants, public sports venues and the like (tobacco-company profits are rarely mentioned) gain from smoking.

Actually, smoking is a great example of a personal freedom that is ensured by bottom-line factors. Politicians may bang the regulatory drums in the name of public wellness and health-care cost savings, but they would never ban smoking outright. They’re all-too-aware of how corporate taxes on hugely profitable tobacco companies, federal excise taxes on cigarettes, and state tax revenues from cigarette sales dwarf any increased costs smoking may incur on society. Even if they didn’t, tobacco-related tax revenues are more immediately meaningful to politicians than any trickle-down economic boon that banning smoking might produce. But I digress…

Numbers also play a huge role in the dialogue about illegal aliens (if you think there’s no personal liberty angle to this issue, wait until we all get national I.D. cards or RFID chips under the auspices of distinguishing citizens from non-citizens). This debate — whether among politicians or pundits in the mainstream media — is appallingly one-dimensional in its focus not on the principle of whether non-citizens should be allowed to live, work, and suck at the public teat in the U.S., but rather on whether illegal aliens are a net boon or drain on our economy!

As though dollars and sense were the sole determining factors in the matter — security, fairness, equality, sovereignty, and the integrity of existing law be damned.

With few exceptions, today’s debate about personal liberties is overwhelmingly focused on need or economics — and driven by statistics. But as I’m about to show you, when numbers drive a discussion of freedom, we become vulnerable to deception on a much greater scale than if that debate focuses principally on principles…

Lies, Damn Lies, and Statistics

There are two main justifications the various levels of government in America use to abrogate your freedom: Saving lives and saving money.

Perhaps the best example of this is the debate over a liberty that almost everyone has been brainwashed into believing it’s a good idea to restrict: Helmet-less motorcycling. As always, this debate has been dominated over the years by the discussion of numbers that SEEM to show that from both a bottom-line and human life standpoint, mandating motorcycle helmets is a no-brainer.

However, as is the case so many times when liberty is shackled, these statistics are an utter sham. Here’s the “Readers’ Digest” version of some hard numbers I included in my article on this topic in May 2006:

“At first glance, most statistics used to support the argument that helmets save lives and/or reduce injuries — or rather, that helmet laws accomplish these things — are compelling. Most of them look like this oft-cited data from California, the state with the most road-registered motorcyclists by far in America:

~~~~~

“Looks like the helmet law reduced brain injuries by more than 53%…

“Let’s put these numbers into perspective: …

• “According to data from the National Association of State Motorcycle Safety Administrators (NASMSA), California motorcycle registrations plummeted in the 4 years following passage of the mandatory helmet law by approximately 20%. This fact alone should result in 20% fewer accidents and brain injuries, all other factors being equal…
• “According to a 1994 UCLA study on the effects of the 1992 California helmet law mandate, in just the 2 years following the law’s passage, the total number of motorcycle accidents decreased by 34.98% (-25.46% in 1992 and -9.52% in 1993)! It stands to reason that brains injuries would also drop by at least this amount…

~~~~~

“These data can point to only one conclusion: When helmets are mandated, bikers ride less, which equals fewer accidents. Any statistics that fail to adjust for this — like most of the raw numbers being trumpeted by the pro-helmet lobby — are bogus…

“But back to the UC San Francisco School of Medicine chart for a moment: Isn’t it odd that the chart only catalogs brain injury hospitalizations, not fatalities? Could this be because the fatalities numbers paint a less-than-flattering picture of helmet usage?

~~~~~

“You’ve already learned that in California, the total number of motorcycle accidents decreased by 35% in the 2 years (1992-1993) following the mandatory helmet law. So, if helmets improved accident survivability, then the ratio of deaths to accidents should have fallen at a greater rate than this during those two years…

“But it didn’t. Based on NASMSA’s records of fatalities per motorcycle registered in the Golden State, the fatality rate in the last year of voluntary helmet use (1991) was approximately 7.55 deaths per 10,000 motorcycle registrations. At the end of 1993, this ratio was approximately 5.30 per ten thousand bikes…

“A difference of only 29.8%.

“This means that the California mandatory helmet law made it MORE likely that a motorcycle crash would result in death to the rider — nearly 15% more likely, in fact.

“California is not alone, either. In similar comparisons of public accident and fatality data across all 50 states in 1993 (the year in which mandatory helmet laws most recently peaked in the U.S.), the numbers look like this:

“As you can see, the rate of accidents per participant nationwide is 14.5% higher (222.21 vs. 194.02) in mandatory helmet states, and the rate of fatalities per accident is also higher, by nearly 3% (2.98 vs. 2.9)…”

Stay with me here. Now I’m going to relate all of this helmet talk back to the “balance sheet” idea…

Power Politics of the “Golden” Rule

My home state, Maryland, passed its helmet law at the same time as California (1992) on the grounds that it would save both lives AND money — since it would eliminate the state’s long-term care costs of those uninsured riders who were hospitalized with head injuries helmets would have prevented. Assuming that the California data would hold roughly true in the Old Line State, this would indeed likely have been the case, even adjusting for a similar decline in registrations and rider-ship…

However, nary a peep was made during the pre-mandate discourse about the negative economic impact Maryland’s bars, restaurants, motels, gas stations, bike dealerships and cycle parts and service centers would have sustained from a drastic decrease in rider participation in response to a helmet law. This number would surely have far exceeded the fiscal liabilities involved with treating brain injuries of the uninsured.

Now, I know what you’re thinking: If bottom-line concerns really are the “Golden Rule” of legislation, why’d Maryland and California politicians pass helmet laws that seemingly subtracted from their real-world bottom lines in the early 1990s?

Because the Federal government bribed them to.

At the tail end of 1991, the sweeping Intermodal Surface Transportation Efficiency Act (ISTEA) was signed into law by Congress. Among other liberty-quashing, government-expanding, commerce-shackling and public-payroll-increasing provisions, that law revived millions of dollars in dormant-since-the-‘70s incentives to states that had passed both car seat-belt and motorcycle helmet laws. Some of this money was earmarked for specific transportation-related programs, and some of it was discretionary for states to spend as they pleased.

Basically, since the Feds couldn’t pass a national helmet mandate without looking iron-fisted, they simply dangled a few million bucks in tax-pork bride money in front of state legislatures, and some of the more greedy ones (Maryland and California) took the bait. It’s hardly a coincidence that both these states enacted helmet laws in 1992.

What this proves to me — and what it should prove to any thinking American — is that raw, liquid money in their hands is more important to politicians than likely far greater sums infused into the economies of their home states…

That state road-maintenance and other low-wage jobs paid for by federally subsidized pork are more important to them than private-sector jobs lost in their own districts by needlessly limiting freedom…

And that it’s more important for them to be able to say, even falsely, that they “saved lives” and “created jobs” than it is for them to say they preserved liberty and allowed the free market to find its own unfettered economic equilibrium…

My point is that limiting personal liberties — smoking, drinking, helmet-wearing, gun-carrying, kite-flying, you name it — is almost always hostile to the real-world, entrepreneurial bottom line. But such restrictions are often favorable to the bottom lines politicians care about: Image, pork money, tax revenue, votes and government jobs.

And so they become the law.

Rhetorical Red Herrings

To me, there’s something even scarier than the fact that our government, from Capitol Hill on down to the town hall in Podunk, Georgia, is doing everything it can — through its own perverse bureaucratic alchemy of laws, lies, rhetoric, taxation and regulation — to convert various chunks of our liberty into money in their pockets…

That’s the fact that we’re all thinking in their terms about it.

Like quick-draw artists in Old West movies, pundits in the media, on the Boards of special interest groups and even around the dinner table go into arguments and debates armed NOT with simple reason and the fundamental righteousness of liberty, but with numbers they can sling at the drop of a stat.

And like I’ve shown with the helmet law example, in many cases, those numbers are colored, skewed, pared down and stacked to prove one point and not the other…

This is the end result of a calculated move by government, perpetuated by the dim bulbs running the lap-dog media. On the one hand, they’re programmed us to see things only in terms of dollars and cents — and on the other, they’ve obfuscated, dumbed-down, and co-opted the debate to the point where fundamental American principles get buried under stacks of irrelevant statistics, never to see the light of day.

It’s a three-part formula that campaign managers, hired-gun pollsters, and PR slicks know all too well:

1) First, make people greedy by threatening their bottom lines, or fearful by threatening their safety. (“Drinking is costly to society — if we don’t pass this law lowering the DWI standard to .000000000000008, we’ll have to raise taxes,” or “A gun in the home is more likely to harm the family than an intruder — if we don’t outlaw them, kids will die!”)

2) Second, show them numbers — real or not, it makes no difference — that outrage them and support abrogating freedom. (“Just look at how much money these invalided motorcyclists and seat-belt-less drivers are costing the rest of us decent, hard-working people!”)

3) Finally, pit freedoms against each other to make folks think they’re patriotic for restricting OTHER Americans’ liberties. (“These smoking libertines are threatening your freedom to go where you want without risking emphysema yourself!”)

It’s a total racket, too. Politicians know that by definition, practitioners of any single liberty are in the MINORITY. Far more people don’t smoke than do. Loads more people don’t ride motorcycles than do. There are a lot more non-skiers than there are skiers. There are fewer gun owners than those without any firearms (though not by as much as you might think)…

Therefore, it’s relatively easy to limit any single liberty by majority vote. All our leaders have to do is give us a red herring to look at — like a bunch of statistics — and we’ll forget all about the fact that liberty is its own reward…

And it’s worth paying for even if the numbers really don’t validate it.

Bottom Lines on Liberty: Theirs and Ours

Though I often use the terms liberty and freedom interchangeably, to my way of thinking, liberty most accurately refers not to those fundamental freedoms that are guaranteed to us by law (e.g. see Bill of Rights, the)…

But rather to all those things that aren’t explicitly protected by law.

In other words, everything Americans are supposed to be able to do without fretting about Big Brother busting them for no good reason. Ideally, this should mean (and it used to) that you can do just about anything you want to — especially on your own property — as long as it’s not directly harming anyone else. That’s the TRUE American model, handed down from Locke, Rousseau and others the Constitution’s framers thought were onto something…

Now think about this for a minute: If the “balance sheet” mentality that has driven the changes in just one liberty — like motorcycle helmet legislation — were to become the boilerplate model for laws concerning all kinds of other liberties, what kinds of things would still be allowed in America at the end of the day?

Only those liberties that can pass a societal bottom-line bean-counter test?

Or would it be only those that contribute to government’s bottom-line?

Here’s OUR bottom line, as American citizens: Liberty isn’t always safe, sensible or good for us. It isn’t always noble, and it isn’t always pretty. It isn’t always tasteful or moral or high-minded. It isn’t always profitable and it doesn’t always add up in the “plus” column on paper…

But it shouldn’t have to, because liberty is always important. It has value on its own, and is almost always worth whatever it costs us. And if we’re going to limit it, there should have to be a damn good reason for it.

It’s my great fear that if “we” — I mean people like me in the fringe media and you at the dinner table and in the town hall — don’t start re-directing the liberty debate back toward principles and away from mere principal, none of us may end up being able to do so many of the things that makes our lives worth living with passion.

I also think that as we’re about to vote on a measure or candidate who supports limiting the exercise of some liberty we find personally offensive, we should all stop and ask ourselves this question…

When some money-grubbing, headline-grabbing politician puts MY favorite freedom in the crosshairs, will those whose right to liberty I’m betraying right now stand up for ME?

Always lobbying for liberty,

Jim Amrhein
Freedoms Editor, Whiskey & Gunpowder

July 16, 2007

The Liberty Equation was originally featured on Whiskey and Gunpowder. Visit Laissez Faire Books for the best selection of libertarian book titles.