Barnett Still Has It Wrong

In a follow-up comment to his pro-war Wall Street Journal article at the Volokh Conspiracy blog, “Antiwar Libertarians and the Reification of the State,” Barnett further exposes his deficiencies in thinking about libertarianism and foreign policy. The core of his argument is that “radical libertarians” can’t coherently all hold four principles he ascribes to them:

1. War is Inherently Unjust
2. Foreign Governments are Sovereign
3. The illegitimacy of the United Nations
4. The existence of fundamental human rights

One immediately smells a straw man. The trap is in 2). Here’s what he says:

[M]any radical libertarians who hold position (1) at the same time adopt a hyper-legalistic view of what constitutes a ‘war of aggression’ in which states are treated as though they were individual persons. In other words, they adopt the Westphalian view of nation states and sovereignty, which was devised to recognize and protect the autonomy of the government rulers ‘their’ territory. When making this argument, these radical libertarians treat foreign governments as ‘sovereigns’ to be respected (by the U.S. government) unless they commit or imminently threaten an act of aggression against the territory of another sovereign. Systematically violating the rights of their own subjects or citizens is a wholly internal domestic matter. In essence, these foreign governments are treated in principle as the just owners of the territories they govern. And their conduct is to be judged by the same rules of self-defense as are individuals…. One might say that, when dealing with issues of (American) foreign policy, these libertarians reify (foreign) states and treat them like individuals, with all the natural rights of individuals.

Now I’ve read a good bit of libertarian foreign-policy theory, and I don’t recall many references to the Peace of Westphalia (1648), which marked the end of the Thirty Years’ War and the Eighty Years’ War. According to Wikipedia, the two treaties comprising this event enshrined the doctrine of national sovereignty and nonintervention in the internal affairs of states. But the entry also notes that a revisionist view holds that “Neither of the treaties mention sovereignty.”

This historical controversy aside, what does it have to do with libertarianism and foreign policy? Not much. While it is true that the most substantial libertarian thinking about foreign policy embraces the principle of nonintervention in other countries’ internal affairs, libertarian noninterventionism is not founded on the principle of national sovereignty. How could it be?

Only the individual is sovereign. That being the case, no radical libertarian is guilty of reifying the state. Thus, there is no incoherence in the radical-libertarian position. Nice try, Professor Barnett, but no cigar.

If the reason for the prohibition on intervention is not national sovereignty, why have libertarian foreign-policy thinkers insisted that governments follow a strict noninterventionist principle? It shouldn’t be too difficult to discern the answer. Barnett of all people should know, given his long association with most of the heavyweight libertarian intellectuals.

Murray Rothbard, who did some of the most important work on libertarian foreign policy, summed up the answer in The Ethics of Liberty:

[T]he libertarian is interested in reducing as much as possible the area of State aggression against all private individuals, "foreign" and "domestic." The only way to do this, in international affairs, is for the people of each country to pressure their own State to confine its activities to the area which it monopolizes, and not to aggress against other State-monopolists—particularly the people ruled by other States. In short, the objective of the libertarian is to confine any existing State to as small a degree of invasion of person and property as possible. And this means the total avoidance of war. The people under each State should pressure ‘their’ respective States not to attack one another, and, if a conflict should break out, to negotiate a peace or declare a cease-fire as quickly as physically possible.

As one can readily see, no principle of national sovereignty is needed to establish the noninterventionist principle. Governments don’t have rights over “their” territories or populations. Rather, they are ubiquitous threats to life, liberty, and property. But that is precisely why they must be kept from clashing with each other—when they do, innocents get slaughtered and wealth gets confiscated. This doesn’t mean that governments may properly aggress against “their” populations unmolested. They most certainly may not. It simply means that the method of opposing a given state’s aggression must be something other than interstate warfare. A libertarian cannot coherently advocate aggression in order to fight aggression.

Laissez-Faire Anti-Imperialism

[E]xpansion and imperialism are at war with the best traditions, principles, and interests of the American people, and that they will plunge us into a network of difficult problems and political perils, which we might have avoided, while they offer us no corresponding advantage in return.

These might be the sentiments of a contemporary left-wing intellectual whose notion of America's traditions, principles, and interests would differ markedly from those held by advocates of the freedom philosophy. But they're not. They were written 108 years ago by William Graham Sumner (1840-1910), who, if he gets any attention at all, is usually castigated for his evolutionary (Social Darwinist) and laissez-faire views. Sumner, a founder of American sociology and a distinguished professor at Yale University, was an uncompromising champion of economic freedom, unfettered international trade, individual liberty, and limited government. It is fair to say that in his time he was the best-known American exponent of individualist, classical-liberal ideas.

The rest of this week's TGIF column, "Laissez-Faire Anti-Imperialism," is at the Foundation for Economic Education website.

A Bogus Libertarian Defense of War

My new op-ed responding to Randy Barnett's defense of the Iraq war is posted here at MWCNews.net. It was distributed by The Future of Freedom Foundation.

Latest Offerings

"TGIF: The Common Sense of 'Common Sense'"
"Yes to Recriminations Against Iraq Policymakers"

Syllogism

The state by nature is a threat to life, liberty, and property;
War is the health of the state (Bourne);
War is thus by nature a threat to life, liberty, and property;
No libertarian can consistently support what is by nature a threat to life, liberty, and property;
Ergo, no libertarian can support war.

Cross-posted at Liberty & Power.

Against the Next One Too

I spent the weekend with my wife at charming Eureka Springs, Arkansas, in the Ozarks. We dropped in to Gazebo Books, where I spotted a bumper sticker I immediately bought:

"I'm already against the next war."

More on Barnett

Randy Barnett's "libertarian" defense of the Iraq war -- and imperial war generally -- was so much balderdash that it can't be covered in a single post. So I'll probably come back to it again in the coming days. My first post, while worthwhile in my opinion, was more complex than necessary, because here's one of the chief points of his article:

[L]ibertarian first principles of individual rights and the rule of law tell us little about what constitutes appropriate and effective self-defense after an attack.

But they sure as hell tell us what constitutes inappropriate "self-defense" after an attack. Such as: don't commit mass murder, don't destroy a people's infrastructure so they will die of starvation and disease, and don't violate the rights of the people allegedly being defended. The principles also provide guidance in how to avoid attacks and the need for self-defense in the first place. Such as: Don't prop up and arm dictators, don't overthrow elected regimes, don't aid those who oppress others, don't go out of your way to acquire enemies, etc. etc. etc.

Come to think of it, a libertarian can get quite a lot of foreign-policy guidance from his first principles. If he's really interested in trying.

Ahistorical "Libertarian" Warmongers

Legal scholar Randy Barnett wrote in the Wall Street Journal yesterday that one can be a libertarian and also support the war in Iraq. (Judge for yourself: "Libertarians and the War.") Much could be said about this woeful article. But I'll touch on just one point for now.

Nowhere in Barnett’s article does one find a hint that the leading, pioneering classical liberals of the nineteenth and early twentieth centuries were not just skeptical of the government’s war-making power; rather they were forthrightly antiwar, anti-empire, and pro-peace. These include Frederic Bastiat, Richard Cobden, John Bright, Herbert Spencer, Auberon Herbert, and William Graham Sumner. This is no coincidence. These men were not ivory-tower theorists; they were historians as well as keen observers of contemporary events, applying libertarian principles to the historical conduct of politicians, bureaucrats, and diplomats. It was Sumner, echoing many before him, who pointed out that "national defense" means "war, debt, taxation, diplomacy, a grand governmental system, pomp, glory, a big army and navy, lavish expenditures, political jobbery." The liberals unfailingly understood that war meant the mass murder of innocents and regimentation at home. Nothing is easier for a politician than conjuring up a "self-defense" justification for war, but the great classical liberals would have nothing to do with it. For one thing, they realized that the self-defense analogy is bogus. When an individual defends himself, he does not tax others to help him, conscript others, or bomb the attacker's friends and family, who may be completely innocent of wrongdoing. The state is not an individual. The rules are different.

I think this gets at an underlying flaw in Barnett’s case. He, like others, approaches libertarianism in a hyper-rationalistic, ahistorical way. If in his view a policy position cannot be reached deductively from libertarian first principles, he concludes that libertarianism per se has nothing to say about it. But his method is wrong. Libertarianism isn’t purely an a priori theory. It's a set of insights about human beings and a unique historical institution -- the state -- insights produced by centuries of experience. Libertarianism properly conceived is an interplay of theory and history, neither ever losing sight of the other. It is, as Chris Sciabarra notes, dialectical.

Barnett curiously combines his simplistic a priori approach to libertarianism with a vulgar dilettantism regarding current events void of detailed knowledge about the U.S. government’s conduct in the world for at least the last 50 years. That is what allows him to blithely proclaim that there is no libertarian position on a war against a country that posed no threat to the American people and that was run by a former agent of American presidents. That's why he takes George Bush's pronouncements and policy seriously.

And why are libertarian such as Barnett comfortable with this dubious methodology with respect to foreign policy? Because not far below the surface, they are nationalists. The nation is still a special unit of emotional value -- particularly the U.S. There's an implicit theory of exceptionalism here too. That accounts for their lack of interest in the history of U.S. intervention.

Cross-posted at Liberty & Power.

The "861" Argument

Some tax-deniers insist that wages earned domestically are not taxable. How do they know? Section 861 of the tax regulations told them so.

Here's what tax professor Jonathan R. Siegel of George Washington University Law School says about the argument:

The 861 argument, as articulated by Larken Rose, contains much, much buildup, but in the end it's all based on a misunderstanding of this regulation. The regulation just provides a list of the situations in which it matters whether income is from foreign sources or not. The regulation does not show that domestic income is not taxable. The above references, and particularly code section 61's definition of gross income as "all income from whatever source derived" (as opposed to section 871's limitation to "the amount received from sources within the United States"), shows that the domestic income of a U.S. citizen is subject to the income tax.

By the way, the notion that the whole thing turns on a regulation is somewhat ironic: most tax protestors are particularly insistent that they want the government to rely on laws (which have to be passed by Congress), not just regulations (which come from a government agency such as the IRS).

Siegel adds that as long as we're consulting the IRS regs, we might as well look at 26 C.F.R. § 1.1-1:

. . . (b) Citizens or residents of the United States liable to tax. In general, all citizens of the United States, wherever resident, and all resident alien individuals are liable to the income taxes imposed by the Code whether the income is received from sources within or without the United States.

As we've come to expect, there's nothing to the 861 argument. For more, click here.

Tax-Case Acquittals

Anyone who wants to know how someone can be acquitted by a jury in a criminal income-tax case yet still be liable for the taxes should read the Supreme Court opinion in Cheek v. U.S (1991). Here are the opening words:

Petitioner Cheek was charged with six counts of willfully failing to file a federal income tax return in violation of 7203 of the Internal Revenue Code (Code) and three counts of willfully attempting to evade his income taxes in violation of 7201.

What? You mean the sections of the law are stated in black and white? But we've been told over and over that the government never says what law is violated in such cases. How about that!

Although admitting that he had not filed his returns, he testified that he had not acted willfully because he sincerely believed, based on his indoctrination by a group believing that the federal tax system is unconstitutional and his own study, that the tax laws were being unconstitutionally enforced and that his actions were lawful.

The Court ruled that Cheek should have been allowed to argue to the jury that he sincerely believed he was not liable for the tax, as unreasonable as that belief may be. His sincere belief goes to the crucial element of willfulness, which is a jury question. (The trial judge had told the jury to disregard the defendants statements to that effect.) But it also ruled that Cheek was properly barred from arguing to the jury that the income-tax law is unconstitutional. That, the justices said, is not a jury question. Some more highlights:

We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury....

It was therefore error to instruct the jury to disregard evidence of Cheek's understanding that, within the meaning of the tax laws, he was not a person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as such misunderstandings of and beliefs about the law might be. [Emphasis added.]

The Court sent the case back for retrial, and guess what. The jury didn't believe Cheek's claim of sincerity. It convicted him, and he was sentenced to prison. The conviction was upheld on appeal.

To add insult to injury, Cheek had to pay all the taxes.

That's what I mean when I say a tax law applicable to regular wage earners exists.

Definitions

Theocracy: Yahweh or the highway.
Politician: Public Self-Servant.

Disappointed

I like Ron Paul and think he's done a great service by bringing his sensible views on the Iraq war and the 9/11 attacks to the public's attention. That is the most important thing that has happened in the presidential campaign so far, and it will be tough to beat. I've long known that Ron Paul takes an unlibertarian position on immigration. Still I am deeply disappointed to learn, from an article in the latest Liberty magazine, that he calls the illegal entry of Mexicans into the United States an "invasion." This description, given in a fundraising letter, is outrageous. These are human beings, with rights, seeking better lives in an environment more free than the one they are in. For the overwhelming majority of them, complying with U.S. law, an immoral law that violates all our rights, means never getting here--ever. They mean us no harm; on the contrary, they seek a place in the division of labor.

Therefore, they are not invaders and their entry in no way constitutes an invasion. This is belligerent Pat Buchanan-talk, and it is unworthy of Ron Paul. I hope he will rethink his position.

Class Struggle Rightly Conceived

Karl Marx is famous for drawing attention to the idea of class struggle. Yet remarkably in 1852, historian David Hart recounts, Marx wrote, "[A]s far as I am concerned, the credit for having discovered the existence and the conflict of classes in modern society does not belong to me. Bourgeois historians presented the historical development of this class struggle, and the economists showed its economic anatomy long before I did." By "bourgeois historians" and "economists" Marx meant laissez-faire liberals such as Charles Comte, Charles Dunoyer, and other early nineteenth-century French writers. In light of Marx's words, it's worth exploring "the historical development of this class struggle" as seen from the perspective of the classical liberals.

The rest of this week's TGIF column, "Class Struggle Rightly Conceived," is at the Foundation for Economic Education website.

Logic Spoken Here

My conflict with the tax-denial movement has driven home the fact that some people don't know a rational argument when they encounter one and can't construct a counterargument in return. More than once I've been told that my insistence that there is an income tax on the books applicable to wage earners in the 50 states means either that:

1. I am a statist, or
   
2. I am willing to trust the government.

I don't feel any need to answer these charges. I'll stand on my body of work. All I want to do is point out the logical fallacies involved.

1. It is hard to see how one's own position on the state can be divined according to whether or not one thinks there is an income tax on the books. This is an empirical matter that is in principle subject to agreement regardless of one's political philosophy. The point is not whether the government can create an objective moral liability through the tax laws. I say it cannot. Rather the issue is simply this: has the state followed its own procedures and (in the narrow sense) legally imposed the tax? All this means is that the Congress passed some laws, the president signed them, the courts have upheld them, and the enforcement agencies are prepared to enforce them. There is no doubt that in that sense, the tax law exists. It seems patently obvious that one can acknowledge this and be a libertarian. To hold otherwise would be similar to arguing that a self-proclaimed anarchist who acknowledges the state's existence isn't really an anarchist. Being a libertarian or an anarchist lies in the "ought (not)" not in the "is (not)."

2. The second charge is similar to the first. Again, it's hard to see any basis for this argument. Concluding that an income tax exists (in the sense described above) requires no trust whatsoever in the state. The conclusion is based on nothing that cannot be confirmed for oneself. The statutes are available for anyone to read (Title 26--Internal Revenue Code). The court cases upholding both the statutes and the government's assertion of the blanket power to tax are also available. They are all in English (more or less). Any competent reader can learn the facts. He need not take anyone's word for it. Trust has nothing to do with it.

The tax-denial movement would do credit for itself by sticking to reason and logic and avoiding absurd accusations, emotional outbursts, and and pseudo-arguments.

Tax Tyranny

My complete take on Murphy v. IRS is this week's TGIF column, "Tax Tyranny." Read it and weep.

Taft, Kirk, Empire, and Peace

Excellent post by Gene Healy here on an older "conservatism's" attitude toward empire. A taste from Russell Kirk, 1967:

[Robert] Taft's prejudice in favor of peace was equaled in strength by his prejudice against empire.... he feared that America might make herself an imperial power with the best of intentions – and the worst of results. He foresaw the grim possibility of American garrisons in distant corners of the world, a vast permanent military establishment, an intolerant "democratism" imposed in the name of the American way of life, neglect of America's domestic concerns in the pursuit of transoceanic power, squandering of American resources upon amorphous international designs, the decay of liberty at home in proportion as America presumed to govern the world: that is, the "garrison state," a term he employed more than once.

Hat tip: Ralph Raico

No Taxation Without Representation in Court!

The July 4th holiday readily brings to mind the phrase “no taxation without representation.” A major reason for the Americans’ wish to be independent from the British empire was their belief that people should have a say in the tax policies imposed on them.

Well, we got representation — and a whole lot more taxes too. Is representation the taxpayers’ only recourse? Perhaps the courts could provide another form of recourse. If the government is supposed to be bound by the Constitution, then shouldn’t taxpayers be able to sue the government when their money is used improperly?

Alas, that’s not how the courts see it.

The rest of my op-ed, "No Taxation Without Representation in Court!" is at The Future of Freedom website.

"Monster"

The 4th of July is the appropriate time to contemplate what has happened to America. I've always thought this song by the band Steppenwolf did a great job of laying out the case. The song is really worth listening to.

"Monster/Suicide/America"

Words and music by John Kay, Jerry Edmonton,
Nick St. Nicholas and Larry Byrom

(Monster)
Once the religious, the hunted and weary
Chasing the promise of freedom and hope
Came to this country to build a new vision
Far from the reaches of kingdom and pope
Like good Christians, some would burn the witches
Later some got slaves to gather riches

But still from near and far to seek America
They came by thousands to court the wild
And she just patiently smiled and bore a child
To be their spirit and guiding light

And once the ties with the crown had been broken
Westward in saddle and wagon it went
And 'til the railroad linked ocean to ocean
Many the lives which had come to an end
While we bullied, stole and bought our a homeland
We began the slaughter of the red man

But still from near and far to seek America
They came by thousands to court the wild
And she just patiently smiled and bore a child
To be their spirit and guiding light

The blue and grey they stomped it
They kicked it just like a dog
And when the war over
They stuffed it just like a hog

And though the past has it's share of injustice
Kind was the spirit in many a way
But it's protectors and friends have been sleeping
Now it's a monster and will not obey

(Suicide)
The spirit was freedom and justice
And it's keepers seem generous and kind
It's leaders were supposed to serve the country
But now they won't pay it no mind
'Cause the people grew fat and got lazy
And now their vote is a meaningless joke
They babble about law and order
But it's all just an echo of what they've been told
Yeah, there's a monster on the loose
It's got our heads into a noose
And it just sits there watchin'

Our cities have turned into jungles
And corruption is stranglin' the land
The police force is watching the people
And the people just can't understand
We don't know how to mind our own business
'Cause the whole worlds got to be just like us
Now we are fighting a war over there
No matter who's the winner
We can't pay the cost
'Cause there's a monster on the loose
It's got our heads into a noose
And it just sits there watching

(America)
America where are you now?
Don't you care about your sons and daughters?
Don't you know we need you now
We can't fight alone against the monster

© Copyright MCA Music (BMI)

Another Blow to the Tax Deniers

As expected, the U.S. Court of Appeals for the District of Columbia has reversed itself in Murphy v. IRS. The background is in my posts here and here. When the court first stunned the government by declaring part of the federal tax code unconstitutional, the frantic Bush Justice Department won a rehearing by the same three judges. Surprise, surprise! The judges reversed themselves, holding that Murphy's compensatory damages for mental distress and loss of reputation are indeed taxable income, and even if they are not income, they are still taxable. Taxing her, the court said, is not unconstitutional.

In essence, the court said that compensatory damages are in fact payment in a forced sale. Weird, but that's what it said. If someone damages your reputation, it's as though he deprived you of something that belongs to you. So when he compensates you, he is completing the forced transaction. Read on.

Some choice quotes from the opinion today:

The Government petitioned for rehearing en banc, arguing for the first time that, even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly. In view of the importance of the issue thus belatedly raised, the panel sua sponte vacated its judgment and reheard the case. . . . In the present opinion, we affirm the judgment of the district court based upon the newly argued ground that Murphy’s award, even if it is not income within the meaning of the Sixteenth Amendment, is within the reach of the congressional power to tax under Article I, Section 8 of the Constitution....

Principles of statutory interpretation could show § 61(a) [of the Internal Revenue Code] includes Murphy’s award in her gross income regardless whether it was an “accession to wealth,” as Glenshaw Glass requires. For example, if § 61(a) were amended specifically to include in gross income “$100,000 in addition to all other gross income,” then that additional sum would be a part of gross income under § 61 even though no actual gain was associated with it. In other words, although the “Congress cannot make a thing income which is not so in fact,” ... it can label a thing income and tax it, so long as it acts within its constitutional authority, which includes not only the Sixteenth Amendment but also Article I, Sections 8 and 9. ... (“Congress has the power to impose taxes generally, and if the particular imposition does not run afoul of any constitutional restrictions then the tax is lawful, call it what you will” [Penn Mut. Indem. Co. v. Comm’r, 3d Cir. 1960])... Accordingly, rather than ask whether Murphy’s award was an accession to her wealth, we go to the heart of the matter, which is whether her award is properly included within the definition of gross income in § 61(a), to wit, “all income from whatever source derived.”...

Even if we assume one’s human capital should be treated as personal property, it does not appear that this tax is upon ownership; rather, as the Government points out, Murphy is taxed only after she receives a compensatory award, which makes the tax seem to be laid upon a transaction.... Murphy’s situation seems akin to an involuntary conversion of assets; she was forced to surrender some part of her mental health and reputation in return for monetary damages....

Therefore, even if we were to accept Murphy’s argument that the human capital concept is reflected in the Sixteenth Amendment, a tax upon the involuntary conversion of that capital would still be an excise and not subject to the requirement of apportionment....

[W]e conclude (1) Murphy’s compensatory award was not received on account of personal physical injuries, and therefore is not exempt from taxation pursuant to § 104(a)(2) of the IRC; (2) the award is part of her “gross income,” as defined by § 61 of the IRC; and (3) the tax upon the award is an excise and not a direct tax subject to the apportionment requirement of Article I, Section 9 of the Constitution. The tax is uniform throughout the United States and therefore passes constitutional muster.

This is a dreadful ruling, but one entirely consistent with the law, the Constitution, and how governments typically behave. Indeed, that's the problem! Reading the opinion gave me a sense that the judges were engaged in a purely expedient exercise, without a principle in their heads. It was as though they were determined to find any case that supported their preconceived notion that the state may tax anything. Unfortunately, that is how states have been viewed historically. And the American state is no exception, however much the tax deniers think it is.

The Flimflam of Income-Tax Denial

My latest blast at the tax-denial movement is now posted at The Future of Freedom Foundation website. It's called "The Flimflam of Income-Tax Denial," and it's already getting me angry e-mail.

I hope no one will take me to be saying the income tax is moral and proper. On the contrary, I'm saying something very different: that it is legal (i.e., the government followed its regular procedures) and constitutional.

The tax-deniers often say things like: There is no law that obligates wage earners in the 50 states to pay income taxes. This is plain nonsense because it misconstrues what it means for a (positive) law to exist. For many years there has been a duly enacted section of the federal legal code that Congress, the executive branch, and the courts all interpret as requiring wage earners to pay taxes.

Now I doubt anyone will deny that. If it weren't true, no one would be penalized for not filing and paying taxes, and there'd be no tax-denial movement. You may disagree with that interpretation, but unfortunately those with constitutional power say you're wrong.

But that is what it means for there to be such a law. Thus the statement that there is "no law" is patently wrong. Law, in the positive (not natural) sense, is what Congress and the Executive, ratified by the courts, say it is. What else could it possibly be?

"Mirror Image of Hitler"

"The Law of Return is an apologetic law. It is the mirror image of Hitler. I don't want Hitler to define my identity."

--Avrum Burg, former Speaker of the Israeli Knesset, interviewed in Haaretz, June 24

The entire interview is worth reading.

Hat tip: Ralph Raico and Mondoweiss