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What Social Animals Owe to Each Other

Friday, May 20, 2022

TGIF: True Liberals Are Not Conservatives

The relevance of F. A. Hayek's essay "Why I Am Not a Conservative," the postscript to his important 1960 book, The Constitution of Liberty, is demonstrated at once by the opening quote from Lord Acton:

At all times sincere friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects often differed from their own; and this association, which is always dangerous, has sometimes been disastrous, by giving to opponents just grounds of opposition. [Emphasis added.]

Who among true liberal advocates of individual liberty and free social evolution -- aka libertarians -- would deny the truth of that observation?

Hayek had European conservatism in mind when he wrote his essay, and for years, American conservatives, who still had affection for true liberalism, hastened to point this out. As Hayek wrote:

Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. It has, since the French Revolution, for a century and a half played an important role in European politics. Until the rise of socialism its opposite was liberalism. There is nothing corresponding to this conflict in the history of the United States, because what in Europe was called "liberalism" was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense.

Later in his essay, he elaborated that "in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes."

But he noted that "This already existing confusion [over labels] was made worse by the recent attempt to transplant to America the European type of conservatism, which, being alien to the American tradition, has acquired a somewhat odd character." The confusion was compounded, Hayek wrote, when socialists began to call themselves liberals.

Many still suffer from this confusion today. But change has been afoot because the illiberals of the left and right increasingly want no part of true liberalism or the label -- and in a way, that's good. Those on the left who call themselves progressives or socialists don't like the label liberal (or neo-liberal) because they associate it with the current permanent bipartisan prowar regime beholden to special corporate interests (so we liberals still have work to do), and virtually all conservatives eschew the label because they don't want to be mistaken for libertarians. That's also good.

So Hayek's essay has new relevance for America. Would Hayek have been surprised? He would have distinguished national conservatism from neoconservatism because of the latter's cosmopolitanism. But how could he embrace as bonafide allies people who view imperialist war as a way to create "national greatness" and social solidarity, as the neocons do? Hayek would have agreed with Abraham Bishop who said in 1800 that "a nation which makes greatness its polestar can never be free; beneath national greatness sink individual greatness, honor, wealth and freedom."

So let's look at Hayek's problem with conservatism. For him, the "decisive objection" is that "by its nature," conservatism can do no more than slow down the change that progressives have initiated. That's not good enough: "What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move." He acknowledged that although the liberal's differences with the "collectivist radical" are greater than his differences with the conservative, the latter "generally holds merely a mild and moderate version of the prejudices of his time." Thus "the liberal today must more positively oppose some of the basic conceptions which most conservatives share with the socialists."

Explicitly illiberal American conservatives would take issue with Hayek here, but I think Hayek was right. To the extent that conservatives want to use the state to impose their values -- through censorship, immigration and trade restrictions, vice prohibitions, antitrust law, cultural protectionism, and the like -- they indeed share conceptions with their enemies on the left. The ends may differ, but the means bear an uneasy resemblance. (The late Leonard Liggio used to say that the original socialism arose as a middle way that promised to use conservative means, that is, the state, to achieve liberal ends, that is, industrial progress and widespread wealth. Later a "new left" turned against industrial progress and disparaged the goal of material abundance for all.)

"The main point about liberalism," Hayek wrote, "is that it wants to go elsewhere, not to stand still." My sense is that in the last few years, elements of the right have come to appreciate Hayek's point. They became fed up with mere holding actions and have resolved to push a "positive" program. Unfortunately, it's a state-saturated program that ought to make genuine liberals sick.

The exception appears to be foreign policy. Right-wing nonintervention seems to have two justifications: first, that the U.S. government is wrong to think it can design the cultures of other nation-states, and second, that the trillions of dollars the government spends on the military and foreign populations could be better used for domestic matters, including "border security." So even in foreign policy the liberal and conservative bedfellows ought to be uncomfortable.

The liberal's wish not to stand still is the crux of the matter.

There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions. Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. So far as much of current governmental action is concerned, there is in the present world very little reason for the liberal to wish to preserve things as they are. It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth. [Emphasis added.]

Hayek's embrace of a social order that guarantees change may seem to conflict with other things Hayek wrote that seem more conservative. But I think that may be mistaken. I take him to say that although the new is not necessarily the good, people must be free to try new ways to flourish. It is one thing to personally default to tried and true until something new proves itself worthy (because a tradition's value may not be immediately apparent), but quite another to empower the state to impede innovation and entrepreneurship, which is disruptive insofar as it is constructive. (Hence I would change Schumpeter's creative destruction to creative disruption.)

Hayek proceeded to enumerate several differences between liberal and conservative attitudes. The first, as already suggested, is that "one of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such, while the liberal position is based on courage and confidence, on a preparedness to let change run its course even if we cannot predict where it will lead." This for Hayek explained the liberal enthusiasm for the free market's generation of spontaneous if unpredictable order, and the conservative lack of enthusiasm for such.

Relatedly, unlike liberalism, conservatism displays "its fondness for authority and its lack of understanding of economic forces. Since it distrusts both abstract theories and general principles, it neither understands those spontaneous forces on which a policy of freedom relies nor possesses a basis for formulating principles of policy." For Hayek, the conservative's "complacency ... toward ... established authority ... is difficult to reconcile with the preservation of liberty."

Hayek could have been describing Sen. Josh Hawley and the thinkers behind national conservatism when he wrote: "In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. He believes that if government is in the hands of decent men, it ought not to be too much restricted by rigid rules."

Hayek faulted the conservative for lacking -- indeed, for disparaging -- abstract political principles, which are the key to peaceful coexistence among people within a society who have different moral visions:

What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force.

And this point of Hayek's is especially pertinent:

Connected with the conservative distrust of the new and the strange is its hostility to internationalism and its proneness to a strident nationalism. Here is another source of its weakness in the struggle of ideas. It cannot alter the fact that the ideas which are changing our civilization respect no boundaries.... It is no real argument to say that an idea is un-American, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots.

Hayek continued that "it is this nationalistic bias which frequently provides the bridge from conservatism to collectivism: to think in terms of 'our' industry or resource is only a short step away from demanding that these national assets be directed in the national interest...."

As he closed his essay Hayek confessed that since the word liberal had been corrupted, thanks to the French Revolution and other forces, by "overrationalis[m], nationalis[m]" and socialis[m]," it had ceased to a good label for his political outlook, which he shared with Tocqueville and Acton: "What I should want is a word which describes the party of life, the party that favors free growth and spontaneous evolution. But I have racked my brain unsuccessfully to find a descriptive term which commends itself." (He found libertarian "singularly unattractive" and "manufactured.")

I could go on quoting Hayek's essay -- which is not to say I agree with all of it -- but I fear that would unduly impose on the reader. So I recommend that the entire essay by the self-described "unrepentant Old Whig" be devoured forthwith.

Friday, May 13, 2022

George H. Smith

The sad news has belatedly come to my attention that the philosopher and historian George H. Smith, 73, died on April 8. He had been in poor health. I was fortunate to have known George since the 1970s and to have had many conversations with him. He was self-educated, multidisciplinary, and nothing short of brilliant.

Smith wrote several books and hundreds of articles on the philosophy, history, and intellectual history of individualism, classical liberalism, anarchism, and freethought. His output was remarkable and can be found in literary and video form at Libertarianism.org. His work is also available at Amazon.com.

TGIF: Alito's Challenge to Libertarians

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find "rooted in [our] history and tradition" and deem "essential to our Nation's 'scheme of ordered Liberty.'"

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito's draft in Dobbs v. Jackson Women's Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That's not his job. Rather, he's concerned only with constitutional rights -- liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That's the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment's due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries ... are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, "[G]uided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty' when the issue involves putative rights not named in the Constitution" -- such as a woman's putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That's a concept in the case law, apparently first enunciated in 1937, that "sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things --SR] through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."

If that counts as "proving too much," libertarians would say let's do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history -- such as the rights to contraception, interracial marriage, and same-sex marriage -- are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

Putting on his historian's hat, Alito accuses the majority in Roe of misstating history and writes that abortion even at an early stage was never regarded as a right in Anglo-American common or statutory law and was generally illegal throughout the United States. Not everyone agrees with Alito's historical account.

Alito asserts that when justices ignored history, they engaged in "the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York." That was the highly influential 1905 case in which the Court struck down a state law limiting the hours that bakers could work per day and per week because the law violated freedom of contract under the 14th Amendment. Progressives hated the ruling from the start, but some conservatives later came to hate it too because it relied on the concept of substantive due process, by which judges could invent rights that conservatives abhorred. Libertarians also ought to have apprehensions about substantive due process. Such seemingly benign legal notions, including "unenumerated rights," are double-edged swords.

The juridical problem in distinguishing putative rights that are constitutionally protected from those that are not is that no constitution could name more than a few rights. Where does that leave all the rights left out? (We could say there is only one right, namely, the right not to be subjected to aggression, and that anything more specific rights are examples of the principle. But that would incite a never-ending controversy over what constitutes aggression.)

The Ninth Amendment, which says that rights not mentioned were still retained by the people, seemed to be the solution to the problem. That amendment has not played an important role in constitutional law to the frustration of libertarians, but danger lies in that amendment if it were to be taken seriously. The danger is that pseudo-rights could be embraced by Supreme Court justices. Rights theory is like a butterfly. You may lovingly nurture the egg, larva, and pupa, but once the butterfly emerges from the cocoon, it will fly where it likes or be blown about by the wind, logic or no logic. (It's been pointed out that the Bill of Rights has turned out to be a tragic distraction. Instead of the government having the burden of justifying any power it wishes to exercise, the people have had to justify any claimed right by finding supporting text in the Bill of Rights. Maybe we'd have been better off without it.)

It's tempting for each of us to think that our own theory of rights or liberty just happens to be the one that perfectly aligns with the intent of the framers or with the common understanding of the constitutional text in 1789. But how likely is that? The framers didn't agree philosophically on everything and people often understand words and sentences differently among themselves. In other words, originalism isn't a neat solution.

As noted, Alito's alternative to judges who impose their personal views about liberty is judges who stick exclusively to rights deeply rooted in the country's history and tradition. But this is also unsatisfying because it imprisons us in the thinking of long-dead individuals whose understanding of liberty might have been incomplete. Why assume that the framers understood every implication of the nature of freedom? As Thomas Paine wrote in The Rights of Man:

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the "end of time," or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.... It is the living, and not the dead, that are to be accommodated.

It's true that constitutions can be amended and the framers' shortcomings addressed, but that process is always costly and difficult. In the meantime, people suffer from the deprivation of their liberty.

Alito's choice between the alternatives is clear, but the Constitution contains no guide to interpretation. Even if it did, how would that help? Any guide to interpretation would itself be open to interpretation. We'd end up with an infinite series of guides.

So where does that leave us? Apparently with two choices: an un-elected national super-legislature free to invent rights or a federal court guided by an emaciated, tradition-bound notion of liberty and unchained state legislatures free to grant (revocable) "rights" by majority vote. Neither seems ideal, but the ideal seems not to be on the menu today. I recorded my thoughts on perhaps the short-term second-best solution in "Disagreement without Conflict."

(See my book America's Counter-Revolution: The Constitution Revisited.)

Friday, May 06, 2022

TGIF: Mask Mandate - Liberty Can Hang on One Word

As I mentioned recently, whether the courts protect or violate liberty in any given case is something of a coin toss. The matter could hinge on a single word. We just had a good example of that fact.

On April 18 U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee in Tampa, Fla., ruled that the Centers for Disease Control exceeded its statutory authority when it mandated that most people wear masks when using public transportation in order to stem the spread of COVID-19. (Health Freedom Defense Fund et al. v. Biden.)

The judge's ruling hinged on a single word in §264(a) of the Public Health Services Act of 1944, on which the CDC claimed its authority: sanitation.

§264(a) states:

The Surgeon General [or CDC apparently], with the approval of the [HHS] Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General [or CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

For Judge Mizelle the question came down to exactly what sanitation means and whether mask-wearing is a method of sanitation. The answer depends, she said, on the sense, that is, the context, in which the statute uses that word.

She wrote: "A requirement that travelers wear a mask is not inspection, fumigation, disinfection, sanitation, or pest extermination, and the government does not contend otherwise." But, she added, the CDC does contend that the mask mandate is "akin to sanitation."

The judge rejected that contention. The statute does not define sanitation, so she relied on dictionaries for guidance, finding that the word refers to both cleaning something and keeping it clean:

The context of §264(a) indicates that "sanitation" and "other measures" refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither "sanitizes" the person wearing the mask nor "sanitizes" the conveyance. Because the CDC required mask wearing as a measure to keep something clean -- explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it -- the Mask Mandate falls outside of §264(a).

Mizelle had much more to say on why the second sense of the word doesn't apply, and she rejected other CDC claims.

My point is not to take issue with the result. I am delighted the CDC -- one of those "expert" regulatory agencies that have effectively become unelected legislatures unto themselves -- was reined in. Throughout the pandemic the CDC has tried to seize one unprecedented power after another. Fortunately it has not gone unchecked. When it imposed a moratorium on apartment evictions and forbade the cruise industry from operating, the courts said no. Now a court has said no to the mask mandate.

Rather, my point is that freedom can hang by a very thin thread. Judge Mizelle made a good case that in this statutory context, mask-wearing is not a method of sanitation. But what about the next judge who hears a CDC or other power-grabbing case? (As we've seen repeatedly, the party of the nominating president gives no assurance.) As former President Clinton aide Elaine Kamarck shows, it wouldn't have been a stretch for a judge to have upheld the mandate, and most Americans wouldn't have thought the reasoning off the wall. The difference between Mizelle and Kamarck looks like hair-splitting. But liberty is too precious to be left to hair-splitting.

As I wrote in 2009, after soon-to-be Supreme Court Justice Sonia Sotomayor assured the Senate Judiciary Committee that a "judge applies the law [and not her feelings] to the facts" of the case:

Nothing in human affairs is that simple. Judgment and interpretation are required every step of the way. This is why, contrary to popular fable, the line between the rule of law and the rule of men and women is so fine as to be nonexistent. (See John Hasnas’s important papers "The Myth of the Rule of Law" and the "The Depoliticization of Law" [pdf]). Laws, which are intended to be applied to an unlimited number of unforeseeable future circumstances, do not speak for themselves. Human beings must interpret them. This does not mean language is inherently impenetrable. (I could hardly write if I believed that.) However, there is a broad middle ground between impenetrability and perfect clarity. As libertarian legal scholar Randy Barnett noted,  “While I do not share [the] view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today.”

Where does that leave us then? It leaves us with the question asked by the classical liberal legal philosopher Bruno Leoni, author of Freedom and the Law (1961): “It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.” What's the alternative to legislature-based law? Leoni wrote: "Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the will of the land."

It was law that judges discerned when resolving specific disputes brought before them by specific individuals; it was law based on custom and the reasonable expectations it gave rise to. The system stood in contrast to legislature-made rules that are later interpreted by judges. It wasn't a perfect system, but the comparison is not to Utopia but to what legislatures and judges routinely do. Leoni likened judge-discovered law to the spontaneous order of the free market and legislature-made rules to central economic planning:

No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned.

Under the best of circumstances, conventional political systems are dodgy places to seek the protection of liberty, even in matters of public health, where property rights, contract, and voluntary community should reign supreme. (On the efficacy of masks, see this.) If the mask-mandate case isn't convincing enough, have a look at the leaked draft of Justice Samuel Alito's draft opinion in the Supreme Court's latest abortion case.

Thursday, May 05, 2022

Privacy as a Property Right

In 1993 I wrote an article at the Cato Institute that may be relevant to the current controversy over abortion and the Supreme Court: "Dissolving the Inkblot: Privacy as a Property Right."

Friday, April 29, 2022

TGIF: What Really Protects Liberty?

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on "medical" matters. So, if judges furnish constitutional and other legal grounds against power grabs, we're supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That's pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas's "The Myth of the Rule of Law.") It's only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: "The system works!" But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn't with the Constitution; it's with the judges. But considering that the Constitution doesn't interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don't agree on everything.

Since it's people all the way down and the process is internal, not external to society, don't the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a "parchment barrier." But he couldn't have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves -- people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python's Life of Brian in which Brian tells a prison guard that he doesn't have to follow orders and the guard replies, "I like orders.")

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered "non-essential" businesses and schools to shut down and people to stay home in 2020, those politicians didn't point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

So all these state agents acted to suppress liberty freely. They followed orders. Why? Because they believed it was proper to do so. Most of the public believed it too. So they were unlikely to interfere.

Why do all these people behave as they do? They do it because of their moral-political values, which they've absorbed since childhood. They believe deep down that the state -- which is just a large gang of people -- is mystically endowed with a moral authority that permits them to do things that the rest of us must never do. In other words, the people, who always outnumber their rulers, subjugate themselves. (See Etienne de la Boetie's classic, The Discourse on Voluntary Servitude.)

This means that the real constitution in any society is not necessarily and usually is not the written one. The real constitution is reflected in most people's day-to-day actions, attitudes, and de facto institutions. It may conform to or conflict with the written constitution. As Roderick Long writes, “what matters is a nation’s ‘constitution’ in the original sense of the actual institutions, practices, and incentive structures that are in place.” (See “Market Anarchism as Constitutionalism.”)

The upshot is that if people's values are not consistently pro-liberty, it won't matter in the long run much what the Constitution "says," and if they are pro-liberty, then it won't matter whether there is a written constitution -- or a state for that matter. In this respect, the debate between libertarians over whether the state is either necessary or proper starts to look rather different. Stateless societies would have constitutions too. As Long puts it:

Anarchy thus represents the extension, not the negation, of constitutionalism. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Gustave de Molinari, the founder of market anarchism, meant when he wrote, in 1884: “The future thus belongs neither to the absorption of society by the State, as the communists and collectivists suppose, nor to the suppression of the State, as the [non-market] anarchists and nihilists dream, but to the diffusion of the State within society.”...

Anarchy is the completion, not the negation, of the rule of law. 

But didn't Madison give us liberty-protecting checks and balances? Not really. What he actually bequeathed was a simulacrum of what a fully freedom-based system would provide. While he hyped his Constitution as featuring a separation of powers (and a context in which ambition would neutralize ambition), he overlooked the likelihood that the branches and special interests may discover that collusion against the people is more profitable than competition among themselves.

In contrast, as Long points out,

Far from eschewing checks and balances market anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system…. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.

These insights are valid regardless of the content of a given written constitution, although libertarian and conservative constitutionalists' love affair with the U.S. Constitution is curious. As the Anti-federalists pointed out when the Constitution was first proposed, the taxing power, absent from the Articles of Confederation, is virtually unlimited and the necessary-and-proper clause is downright scary. Then there's that power to regulate trade, the commerce clause! It also was absent from the Articles of Confederation. (Not that I would have been satisfied with that document. But the comparison is illuminating.)

I won't mention the executive branch's royal power over military and foreign policy. Its consequences have been too terrifyingly obvious to need elaboration here.

And let's not forget the Constitution's implied powers. I know, I know: the Constitution has no implied powers. The national government may only exercise powers expressly delegated. Right? Sorry. As Madison himself said during the debate over the proposed Tenth Amendment," it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." Ouch!

Of course, no article about the Constitution would be complete without quoting Lysander Spooner's irrefutable "The Constitution of No Authority," published in 1870, a time much beloved by constitutionalists:

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist

What's to stop a return of all the restrictions if COVID-19 rears its ugly head or when the next pandemic comes long? Not the Constitution. Constitutions are security blankets, and like all security blankets, they distract from real danger: the unspoken values people hold that are inimical to liberty. Only education and persuasion can instill pro-liberty values.

(Read more about these matters in my book America's Counter-Revolution: The Constitution Revisited.)

Friday, April 22, 2022

TGIF: NATO and Collective Insecurity

Collective security, the official goal of NATO, the North Atlantic Treaty Organization, seems plausible on its face. A group of nations ostensibly concerned about a common threat agree to defend one another in the event of an attack. "All for one and one for all," as the Three Musketeers said.

But like many things, the principle, even if sincerely invoked, is more problematic than the first glance indicates. This is particularly true with governments, and in no area more so than foreign policy and armed forces. Schoolyard analogies involving bullies do not hold.

NATO was established soon after World War II ostensibly to keep the Soviet Union from overrunning Western Europe. The Red Army was present in Eastern and Central Europe, including eastern Germany, having driven back the Wehrmacht in the Allied defeat of Nazi Germany. It is by no means clear that Soviet dictator Josef Stalin aspired to have his armed forces conquer Western Europe, and his doctrine of "socialism in one country," which suggests a conservative foreign policy, hardly supports a militarily aggressive posture toward the West. For one thing, the Soviet Union was exhausted from the savage war -- it lost well over 20 million military personnel and civilians -- and was hardly in a position to begin a new one against the Americans.

While many American politicians, fearing a return of the prewar public sentiment against foreign intervention, spoke of a Soviet threat, not all agreed. The influential Republican senator Robert A. Taft of Ohio, whom I will discuss below, questioned the consensus and thus the official premise of the Cold War.

On April 4, 1949, 12 countries -- the United States, Canada, Great Britain, France, Belgium, the Netherlands, Luxembourg, Portugal, Italy, Norway, Denmark, and Iceland -- signed the treaty that created NATO. (The Warsaw Pact, the Soviet Union's counter-alliance with the Eastern European countries it occupied, would not be founded for another six years.) Since 1998, 18 more countries have joined NATO, for a total of 30, including former Warsaw Pact members and the former Soviet Baltic republics that border Russia -- with the predicted disastrous consequences. (Austria is not a member, having agreed to neutrality in 1955, in return for the Soviet withdrawal. West Germany became a member in 1955, and then a reunified Germany became a member in 1990 as the Soviet Union and Warsaw Pact were being dismantled.)

The heart of the treaty, the "all for one and one for all" provision, is Article 5:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.  [Emphasis added.]

Note the italic phrase: in the event of an attack on a member, each other member will assist by taking "such action as it deems necessary, including the use of armed force." Strangely, this clearly provided wiggle room is never mentioned in the news commentaries about NATO and the Russia-Ukraine war. Why would that be? The reason for the hedge was that, in light of the constitutional delegation of the war power exclusively to Congress, the Senate would have had a problem ratifying a treaty that obligated the country to go to war automatically. (Ironically, President Truman went to war in Korea, which was not a NATO member, without a declaration of war. He called it a "police action.")

The Senate ratified the NATO treaty 82-13 on July 21, 1949. Among those who voted nay was Sen. Taft. Who was he and what were the grounds for his vote?

Taft was the elder son of the late President and Chief Justice William Howard Taft. Sen. Taft had earlier voted to approve U.S. entry into the United Nations but doubted it would be effective, among other reasons, because, of the veto power held by the five permanent members of the Security Council: the United States, Soviet Union, Great Britain, France, and China.

Because of the influence and respect he had earned, Taft became known as Mr. Republican and was the Senate majority leader at the beginning of the Eisenhower administration, from January 3 to July 31, 1953, when he died. He had tried for the Republican presidential nomination three times, in 1940, 1948, and 1952, but failed because the Republican establishment had committed itself to bipartisan multilateral internationalism. As a principled noninterventionist, Taft had no chance.

Earlier, Taft had spoken against U.S. entry into World War II, having witnessed firsthand the unprecedented horrendous destruction and tyrannical aftermath of the first world war, propelled by U.S. intervention under President Wilson. Like other antiwar Republicans, Taft ended his opposition to entry into World War II after Japan attacked Pearl Harbor. (He objected to President Roosevelt's shameful internment of Japanese-Americans beginning in 1942, which the Supreme Court later endorsed.)

Taft's opponents smeared him as an isolationist, an unfair charge. His default position was against U.S. foreign military intervention because he feared it would lead to war, a loss of American liberty and economic stability, constitutionally compromising alliances, and foreign resentment of America. On the other hand he supported an internationally administered rule of law, complete with a court and enforcement mechanism, to protect smaller, weaker nations from domination. That regime, however, would have had no power to meddle in the internal affairs of nations. Taft did favor giving Western Europe assurances regarding a Soviet military threat. (More below.) Taft also voted for, after initially opposing, both Truman's postwar military aid to Turkey and Greece and the Marshall Plan for Western Europe.)

He also opposed the U.S. government's encouragement of American investment in other countries because he foresaw that it would lead to imperialism, again, creating resentment against America. Taft thought the United States should set an example by protecting its own freedom, not by imposing values on others. Taft, who disliked the label conservative, which he associated with the plutocracy, was not a consistent libertarian, but it's clear that individual liberty and the imperative to limit centralized bureaucratic power topped his political values. For that reason he inspired several future libertarian stalwarts, including Murray Rothbard, Ralph Raico, and Leonard Liggio, to join Youth for Taft when the senator ran, unsuccessfully, against Dwight Eisenhower for the 1952 Republican nomination.

On April 12, 1949, Truman in a speech to the Senate urged ratification of the North Atlantic treaty, expressing the official line: "The security and welfare of each member of the community depend upon the security and welfare of all."

In opposing NATO, Taft gave a speech to the Senate on July 26, 1949. In it he criticized the alliance system for, among other things, subordinating U.S. foreign policy to the policies of the other member nations, which might unjustifiably provoke an attack. Note its current relevance:

[T]he Atlantic Pact goes much further. It obligates us to go to war if at any time during the next 20 years anyone makes an armed attack on any of the 12 nations. Under the Monroe Doctrine we could change our policy at any time. We could judge whether perhaps one of the countries had given cause for the attack. Only Congress could declare a war in pursuance of the doctrine. Under the new pact the President can take us into war without Congress. But, above all the treaty is a part of a much larger program by which we arm all these nations against Russia…. A joint military program has already been made…. It thus becomes an offensive and defensive military alliance against Russia. I believe our foreign policy should be aimed primarily at security and peace, and I believe such an alliance is more likely to produce war than peace. A third world war would be the greatest tragedy the world has ever suffered. Even if we won the war, we this time would probably suffer tremendous destruction, our economic system would be crippled, and we would lose our liberties and free system just as the Second World War destroyed the free systems of Europe. It might easily destroy civilization on this earth…[Emphasis added.]

Taft continued (again note the relevance):

If we undertake to arm all the nations around Russia from Norway on the north to Turkey on the south, and Russia sees itself ringed about gradually by so-called defensive arms from Norway and. Denmark to Turkey and Greece, it may form a different opinion. It may decide that the arming of western Europe, regardless of its present purpose, looks to an attack upon Russia....

How would we feel if Russia undertook to arm a country on our border; Mexico, for instance?

He also said America could not afford the foreign policy of which NATO is a part.:"we can’t let them [the Russian and Chinese communists ] scare us into bankruptcy and the surrender of all liberty, or let them determine our foreign policies.... If the President is unwilling to recommend more taxes for fear of creating a depression, then we must have reached the limit of our taxpaying ability and we ought not to start a new and unnecessary building project...."

And more: NATO "is a step backward -- a military alliance of the old type where we have to come to each others’ assistance no matter who is to blame, and with ourselves the judges of the law."

From his prominent position, Taft made sure the public would hear a debate about postwar foreign policy. The bipartisan establishment surely would have preferred he had not done so.

As he prepared to run for the 1952 Republican presidential nomination, he published his book A Foreign Policy for Americans, in which he called for American "moral leadership" rather than imperial domination:

I do not think this moral leadership justifies engaging in any preventive war, or going to the defense of one country against another, or getting ourselves in a vulnerable fiscal and economic position at home which may invite war. I do not believe any policy which has behind it the threat of military force is justified as part of the basic foreign policy except to defend the liberty of our own people.

For some time now, American foreign policy has been sadly contrary to Taft's advice. The price measured in lives and treasure, for Americans and non-Americans, is beyond measure. Taft would be horrified but not surprised by what NATO has wrought and by what is happening today.

Further reading:

"The Republican Road Not Taken: The Foreign-Policy Vision of Robert A. Taft" by Michael T. Hayes, Independent Review, Spring 2004

"New Deal Nemesis: The 'Old Right' Jeffersonians by Sheldon Richman, Independent Review, Fall 1996

Friday, April 15, 2022

TGIF: Shades of Gray in the Russia-Ukraine War

If you're looking for morality tales -- clashes between the clearly good and the clearly bad -- I suggest you look elsewhere than the geopolitical theater. There we find only conflicts between shades of darker gray.

This seems to have been the case throughout history. Empires and would-be empires vied with rival empires and would-be empires for territory, resources, taxpayers, and soldiers. No surprise: governments will be governments, and that's not good. This is not to say the shades of gray did not differ at all, perhaps even significantly on occasion, but the objective was always, first and foremost, booty and control of people. The interests of commoners were rarely if ever the cause.

We see this in Russia's war on Ukraine. Let's be clear: Vladimir Putin and his Russian government freely chose to send military forces across the border into Ukraine. Their military personnel complied. They ultimately are responsible for their choices and therefore the death, injury, and mayhem that is taking place. (I make an exception for proven false-flag operations on the Ukrainian side, should any come to light.)

Now that the issue of primary culpability is out of the way, we can go on to talk about contributory culpability. I hope I've left little room for anyone to argue assigning contributory culpability to others is intended to let the Russian government personnel off the hook.

What sort of culpability do I have in mind? It's on the order of setting a trap and loading it with bait in order to lure a target. Russia had to choose to step into it, but those who set the trap did not have to do what they did. Hence, they contributed to a terrible situation.

Many experts analysts have long pointed out that the U.S. government at least since the late 1990s has knowingly been provoking Russia by expanding NATO up to the country's western border, incorporating most of the allies and some of the republics of the late Soviet Union. For years the U.S. government and other NATO officials have talked publicly about inviting the former republics Ukraine and Georgia to join. Everyone knew that Ukraine was an especially sensitive matter because it had long been a buffer between Russia and states to the west, Poland in particular. The Soviet Union had been invaded three times in the 20th century, twice by Germany and once by Poland, both NATO members since the demise of the USSR.

The warnings against NATO's march eastward were too many to count and came from people as diverse as Henry Kissinger and Noam Chomsky, Soviet-rollback guru Paul Nitze and Soviet-containment architect George Kennan. The current director of the CIA, William J. Burns, warned in 2008, when he was George W. Bush's ambassador to Russia, that no Russian leader -- conservative or liberal -- would ever stand for the admission of Ukraine and George into NATO. Burns's leaked memo was written shortly after publicly NATO declared that it welcomed applications for membership from those states.

That was 14 years ago and six years before the U.S. State Department helped foment a Nazi-backed coup that drove a Russia-friendly but democratically elected president from power -- even though he had been making concessions to the opposition in the streets, including a call for early elections. What motivated the U.S. government was that president's intention to reject an exclusive economic and political relationship with the European Union in order to accept a loan with liberal terms from Russia.

Aside from the overt NATO talk, there's the matter of the U.S. government's putting missile launchers in Poland and Romania. As outfitted, they are for defensive anti-missile missiles, but that could be changed. Moreover, defensive missiles obviously can be useful in an offensive campaign. Remember that Donald Trump, the reputed Russian agent, had earlier denounced the Reagan-era treaty that banned intermediate-range nuclear weapons from Europe and elsewhere. No one could have been surprised when all this was worrisome to the Russians. (Recall what happened in 1962 when the Soviet Union tried to put missiles in Cuba. John F. Kennedy imposed a naval blockade on the island and was ready to launch a nuclear war if the missiles were not removed.)

Since the Russian invasion, Joe Biden and his foreign policy people have denounced Russia sanctimoniously for its violations of international law and brutality, including the inexcusable deaths of noncombatants. It is not inappropriate to ask when an American president has ever respected international law when it was inconvenient for U.S. objectives. In the 21st century alone, American presidents have launched illegal aggressive wars in the Middle East and other places to effect regime change and other geopolitical objectives even partially on behalf of other states, such as Israel. In the process Americans have killed untold noncombatants. They have tortured prisoners. They have wreaked sickening destruction, creating hordes of refugees -- and so on. Yet day after day, lying American officials -- but I repeat myself -- admonish Putin for his bad behavior. There's nothing like setting a good example.

The Ukrainian leaders must also share in the blame. Those leaders who have been West-leaning have not been shy about aspiring to join NATO, knowing full well how the Russians would interpret those words. Since the 2014 coup -- in response to which Russia annexed a long-standing security area, the Crimea with its Russian naval base, to keep it out of NATO hands -- Ukrainian presidents could have made overtures to Russia, assuring that they would not seek NATO membership and offering to make Ukraine neutral in the manner of Austria since 1955. They did not do that, even though the current president, Volodymyr Zelensky, a former comedian and actor, was elected on a peace-with-Russia platform.

Superfically, Zelensky is an appealing figure. He's young and charismatic, and he wears t-shirts. His country has been invaded, which of course puts him in a sympathetic light when he appears on television. But is that the whole story of the man? It also seems that despite the terms of the Minsk agreements, he has been unwilling to talk to leaders in the heavily Russian-ethnic Donbas region, in the far east of Ukraine, about home-rule. Two provinces there, Luhansk and Donetsk, have since declared their independence, which Russia has recognized. The Ukrainian military has been shelling the area since the 2014 coup, and Donbas forces have fought back. The casualties on both sides have been high.

Moreover, as Jacques Baud, an intelligence expert who has worked for NATO, the UN, and Swiss strategic intelligence  writes:

On [March 24, 2021], Volodymyr Zelensky issued a decree for the recapture of the Crimea, and began to deploy his forces to the south of the country. At the same time, several NATO exercises were conducted between the Black Sea and the Baltic Sea, accompanied by a significant increase in reconnaissance flights along the Russian border. Russia then conducted several exercises to test the operational readiness of its troops and to show that it was following the evolution of the situation. [Aaron Mate's video interview with Baud is here.]

Baud also writes, "In violation of the Minsk Agreements, the Ukraine was conducting air operations in Donbass using drones, including at least one strike against a fuel depot in Donetsk in October 2021. The American press noted this, but not the Europeans; and no one condemned these violations."

It begins to look as though Zelensky has cavalierly used the Ukrainian people for his own ends: instead of seeking peace, he sought or was willing to risk war with Russia, assuming the U.S. government and other NATO states would back him up with perhaps more than arms shipments. He still demands a NATO no-fly zone, which would all but assure a new world war and perhaps an all-out nuclear war. So he also shares in the responsibility.

As usual, there's blame aplenty to go around.