Why libertarians should oppose Obergefell v. Hodges

On June 26, the Supreme Court announced its decision in the case of Obergefell v. Hodges, which decided whether same-sex marriage is a constitutionally guaranteed right. The justices decided by a 5-4 vote that “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

The majority opinion was delivered by Justice Anthony Kennedy and was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas each filed a dissenting opinion, each of which was joined by Scalia and Thomas.

This development has been hailed as a victory for human liberty by many libertarians, but there is a strong case to be made that it is not. Let us examine the reasons why Obergefell v. Hodges is actually anti-libertarian and detrimental to gay rights.

1. This decision was a top-down, authoritarian approach which will prolong the conflict rather than resolve it. Rather than allow public opinion on the issue to continue the course toward recognition of same-sex marriages, as was happening, the Supreme Court stepped in and forced recognition of same-sex marriages upon the governments of all 50 states. Curiously, it was Justice Ginsburg who said in 2013 that Roe v. Wade, the case that established abortion rights, “seemed to have stopped the momentum on the side of change.” Ironically, she is now part of a decision which is likely to have a similar effect.

2. The federal government is now in the business of defining what should be a private institution. By inserting itself into the same-sex marriage issue, the Supreme Court has assumed for the federal government the power of determining what does or does not constitute a marriage, a power to be found nowhere in the enumerated powers of the federal government. The problem that state governments were interfering with the right of freedom of contract is not solved by having the federal government do so in a way that does not abolish such interference.

3. This decision does not create a fundamental right to same-sex marriage, but rather a government-granted privilege. The decision requires states to license same-sex marriages and to recognize marriages licensed in other states. But a license is actually antithetical to a fundamental right. A system of licensing actually means that an activity is prohibited unless the licensor grants permission, and that the source of legitimacy for an activity is the licensor rather than providence or logic. (And what makes the licensor legitimate?) Now that the federal government has assumed for itself the power to define marriage, this power could just as easily be used for the purpose of attacking homosexuals in the future, should the political winds change. After all, the government that is powerful enough to give you what you want is also powerful enough to take what you have.

4. This decision furthers the illusion that government is a protector and guarantor of liberty. Government cannot be a protector and guarantor of liberty because it violates liberty by its very operation, but this is not news to any consistent libertarian. But to a gay person who has gained many protections and privileges as a result of this decision, government can certainly seem to be benevolent and the democratic process can certainly seem to be a path to liberty. Whatever good this decision may do will ultimately make government more palatable to some people, which will make it harder to eliminate.

5. Freedom of religion and freedom of association will come under attack next. While the majority opinion does say, “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” it is silent on the issue of whether people will be able to continue to act upon such advocations, convictions, and precepts. This leaves open the possibility that churches and businesses will be forced to participate in and cater to same-sex marriages, and this is already being advocated in the sort of indirect manner that the government would have to use (and does routinely use) in order to evade constitutional restrictions on its power. We also know that governments are fundamentally opposed to freedom of association because they force their citizens to associate with the state. And while current tax laws would not allow for a church to lose tax-exempt status for opposing same-sex marriage, the IRS is notorious for breaking its own rules or enforcing them very selectively.

6. These attacks will cause a backlash. When people are forced to associate with other people against their will and forced to condone practices which they find to be abhorrent, they tend not to respond well. Those whose freedom of religion and freedom of association are attacked when these rights are pitted against the newfound “right” to a same-sex marriage will become more homophobic, not less. Not only that, but this new degree of homophobia will be justifiable because rather than disliking homosexuals because an ancient text says they should, they will now be disliking homosexuals for using state power to commit acts of aggression against them, such as forced labor. This will help to prolong rather than resolve the conflict, as per point #1.

7. This decision expands government handouts. Some of the most pervasive arguments against liberty take the following form: “It would be nice if Evil X were not present, but that is the way things are and will be for the foreseeable future. Therefore, we should have Evil Y as well to ameliorate the ill effects of Evil X.” And of course, it never stops there. There will be some Evil Z proposed to ameliorate the ill effects of Evil Y, and so on until an imprisoning web of evil is spun. But the truth is that two wrongs cannot make a right. The answer is not to support Evil Y, but to work tirelessly and exclusively toward the goal of ending Evil X. Unfortunately, many libertarians seem not to have recognized this on the matter of government benefits for married couples. In this case, Evil X is government involvement in marriage, Evil Y is the extension of government benefits to same-sex couples, and Evil Z is some combination of increased taxation, national debt, and currency debasement, as this is how all increases in government spending are funded.

8. What good this decision has done for same-sex couples could have been done better by other means. It is certainly true that governments have interfered with the rights of homosexuals to freedom of contract, as well as many other protections that opposite-sex couples have. But these rights violations could have been ended by less authoritarian means, such as challenges to the individual laws that deny these protections as well as the creation of alternative institutions to overcome government failures. From a libertarian standpoint, many of the protections that opposite-sex couples have should be abolished rather than extended further, and those which a free society should respect would be better provided through voluntary competition than through the dominance of nine people in black costumes.

Seven observations on the Charleston church shooting

On the evening of June 17, a mass shooting occurred at Emanuel African Methodist Episcopal Church in Charleston, S.C. The gunman killed nine people and wounded one, with senior pastor and state senator Clementa Pinckney among the dead. All were African Americans. The next morning, police arrested 21-year-old Dylann Roof, a white man, who had fled to Shelby, N.C. He now faces nine murder charges and one charge of using a deadly weapon in a violent crime in South Carolina, and may also face hate crime and/or terrorism charges at the federal level. Seven observations on the events follow.

1. Madmen like Dylann Roof are made, not born. A mass murderer never truly acts alone. Roof is known to have had an unstable family environment with an abusive father, a mother who had affairs, and divorce. He attended six different schools between fourth and ninth grade, eventually dropping out of high school. Without an education, employment, or parental guidance, he turned to drugs and violent racist teachings on the internet. Had he had a stable family environment and sound parental guidance, this chain of events could have been avoided.

2. The statist left will not let a crisis go to waste. Within hours of the shooting, President Obama used the shooting to call for new gun control measures. Hillary Clinton followed suit shortly thereafter. To politicize a tragedy and use it to put emotion above reason and evidence is par from the course for those who seek to expand the power of the state and curtail individual rights.

3. No proposed gun control measure would have stopped Roof. As is usual as of late, gun grabbers have focused on universal background checks, assault weapon bans, high-capacity magazine bans, and denial of firearm access to the mentally ill. We know that a background check would not have stopped Roof because it did not; he passed a background check before purchasing a .45 caliber Glock 41 pistol. We know that an assault weapon ban would not have stopped Roof because he used a handgun, which is not considered an assault weapon. We know that a ban on high-capacity magazines would not have stopped Roof because he reloaded five times with standard-capacity magazines, according to an eyewitness. Laws meant to keep guns out of the hands of mentally ill people would not have stopped Roof because he had not been diagnosed with a mental illness.

4. Stopping criminals is not the true purpose of gun control. The true purpose of gun control is not to control guns, but to control people. The rational self-interest of those who wield state power is to expand that power and protect their grasp on it. Disarming the subjects of the state leaves them dependent on government for defense against common criminals and helpless to defend themselves against agents of the government. The endgame is to allow government agents to commit crimes under color of law that they would not be able to get away with if the people were armed. This strategy has a long history; for example, Toyotomi Hideyoshi decreed in August 1588 that “[t]he people of the various provinces are strictly forbidden to have in their possession any swords, short swords, bows, spears, firearms, or other types of arms. The possession of unnecessary implements makes difficult the collection of taxes and dues and tends to foment uprisings.”

5. Evil people with guns are best stopped by good people with guns. More people need to be armed so that thugs like Roof can be exterminated on contact before they cause so much damage. Although this mass shooting ended because Roof could not find anyone else alive whom he wanted to kill, most mass shootings end when armed people close in on and confront the shooter. It would have been easy for an armed churchgoer or security guard to kill Roof during any of the five times that he had to reload his handgun. Unfortunately, South Carolina’s carry laws ban the carrying of arms in churches unless express permission is given by the church officials or governing body of the church, rendering most churches into victim disarmament zones.

6. The path to the above solution is anti-political. It is against the rational self-interest of those who wield state power for the citizenry to be well-armed. Most Republican politicians have some aversion to putting more guns into the hands of poor people and African Americans, and most Democratic politicians would prefer not to put more guns into the hands of anyone who is not a government agent. The political system is rigged against independent and third party candidates, so while some of them would support this agenda, their efforts will be all but meaningless. The goal of arming more citizens so that they can protect themselves must therefore be accomplished by anti-political means, such as 3-D printing of firearms, neighborhood watch programs, and militia organizing efforts.

7. The Confederate flag debacle is a sideshow, but a predictable one. The leftists know that they cannot win on gun control and want to feel like they can do something, even if it would have absolutely no effect against mass murderers, so they are going after an issue where they can win: outrage over the Confederate flag and an initiative to remove it from display on government property, such as the South Carolina State House. Of course this has gone too far, such that classic films are no longer being showed, strategy games set in the Civil War period are being removed from stores, and tearing down Confederate memorials is being considered, but when has the idea of going too far ever mattered to leftists? The reality is that there are far bigger fish to fry. We should be more concerned about the approximately 200 nation states which are still operating and engaging in murder, slavery, kidnapping, robbery, and other violent crimes on a massive scale than about the flag of a nation state which has been defunct for 150 years.

Supreme Court gives raisin farmers fake freedom

On June 22, the Supreme Court announced its decision in the case of Horne v. Department of Agriculture, which decided whether the reserve requirement imposed by the Raisin Administrative Committee under the Agricultural Marketing Agreement Act of 1937 is constitutional. The requirement forces growers to set aside a percentage of their crop for the government without charge. The justices decided by an 8-1 vote that “The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property. Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking—it does not mean the raisins have not been appropriated for Government use. Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.” The Raisin Administrative Committee must therefore either stop taking raisins from farmers or pay a just compensation for their taking.

The majority opinion was delivered by Chief Justice John Roberts and was joined by Justices Samuel Alito, Anthony Kennedy, Clarence Thomas, and Antonin Scalia. Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan joined as to Parts I and II. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in part and dissenting in part, which was joined by Justices Ginsburg and Kagan. Justice Sonia Sotomayor filed a dissenting opinion.

Writing for the majority, Chief Justice Roberts said “Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. …Nothing in this history suggests that personal property was any less protected against physical appropriation than real property. …When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. …Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.”

So, why is this decision which is heralded by many as a victory for private property rights actually a fake triumph for freedom? While the Hornes have won the right to keep all of their raisins instead of handing over whatever percentage the USDA demands of them, this decision was intentionally kept narrow by the justices. The ability of the state to violate private property rights in the name of the “public good” was affirmed. The Court only found that the state must pay the property holders just compensation for doing so. Of course, agents of the state will be the ultimate arbiters of what constitutes just compensation, as they have a monopoly on the courts, so even this may be of little comfort to some victims of eminent domain. The Court also upheld that interstate commerce is subject to reasonable government regulation, and again, agents of the state will be the ultimate arbiters of what constitutes reasonable government regulation. The Court affirmed the idea that a government can legitimately claim and own property, even though everything that governments own has been stolen under color of law from private citizens by current and former government agents. The Court declined to apply the decision in this case to other, similar government programs that affect farmers who grow other crops, so those statist price control initiatives will remain in effect, perpetrating distortions on the market.

The reality of property rights in practice has not been changed by this decision. What is effectively thy property is whatever thou can take and defend from those who would seek to control it in thy stead, regardless of whether those seeking to control it have any logical justification for doing so and regardless of whether they choose to call themselves “the state.”

Rape accusation culture strikes at Amherst College

On May 29, a former student at Amherst College filed a lawsuit against the school in U.S. District Court in Boston. The student, anonymized as John Doe, claims that school administrators expelled him after he was falsely accused of rape. He is seeking $75,000 in damages and reinstatement as a student at Amherst.

According to the lawsuit, “In the just six weeks from the date the complaint was filed against him, the plaintiff found himself held guilty of assault, expelled from the college, ejected from the campus, and branded a sex offender, with his entire future in ruins. The actions taken by the defendants resulted from a deeply flawed investigatory and disciplinary process during which the plaintiff was denied the most rudimentary elements of fairness promised to him by Amherst in its Student Handbook.”

Amherst has issued a statement in response, saying, “The college has put in place a process that is consistent with the requirements under Title IX and is fair to all parties. In this instance, the hearing board concluded that the individual violated the college’s policies on sexual misconduct and respect for other persons. The college is confident that the hearing board followed the College’s process in making its decision.” Pete Mackey, a college spokesman, also defended Amherst’s actions, telling the Boston Globe that “That process was followed in this case. We are confident that the process the college followed was appropriate and that the court will conclude that the college’s process was fair.”

Doe was accused in October 2013 of committing rape in February 2012. The incident occurred in the early morning hours of February 5, when Doe drank enough alcohol to black out. The accuser, identified in the lawsuit as Sandra Jones but identified in her AC Voice column as Anna Seward, took Doe back to her room, where she performed oral sex on him. Doe claims to have no recollection of the sexual encounter, a claim that Amherst’s tribunal found “credible,” despite its ultimate ruling. Doe was her roommate’s boyfriend, which put her in an awkward position. Doe left, then Seward texted two people: a male and a female. She would go on to invite over the male and have sex with him around 5:00 a.m. At the hearing, Seward claimed only to text the female friend to help her handle the assault, but her texts read “Ohmygod I jus did something so fuckig stupid” and “it’s pretty obvi I wasn’t an innocent bystander” [sic throughout]. When Seward’s roommate found out about the incident, Seward found herself friendless.

During the 21-month period between the incident and the accusation, Seward found new friends in campus “victims’ advocates” circles. After Seward published an article about the incident, Doe reached out to Liya Rechtman, a leading activist on campus who was friendly with Seward, to ask if he could have mistreated Seward. Rechtman, employing a model S kafkatrap, essentially claimed that Doe’s question about Seward’s account of rape was sufficient to establish Doe’s guilt.

The disciplinary process at Amherst for such a case is heavily biased in favor of finding the accused guilty. An investigator interviews both the accuser and the accused, but the investigator has no subpoena power and is only required to make a “good faith effort” to speak to witnesses and gather physical evidence. While the accused is permitted to have an attorney present, the accused is not provided with one and the attorney may not participate in the hearing. The accuser and the accused are each appointed an advisor from the university, the advisor is not considered an advocate for the student. No direct cross-examination of the accuser by the accused is allowed. The accuser is allowed to respond in writing rather than orally. The standard is one of affirmative consent (i.e., guilty until proven innocent), but no explanation of how to prove that this standard was observed short of recording a sexual encounter is given. Concerning alcohol impairment, the standard says that “it is important that anyone engaging in sexual activity be aware of the other person’s level of intoxication” and that “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent,” but no explanation for how this might be determined is given. The decision in a case is made by a three-member panel drawn from the student life officials and faculty of Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst. These officials lack tenure and could therefore be fired for making a sufficiently unpopular decision. The training for these panelists is not made public, but the only example of such training that has been made public involved blatant guilt-presuming. The standard used to determine guilt or innocence is one of “preponderance of the evidence” or 50+ percent, which is a far lower threshold than the “reasonable doubt” standard used in a normal criminal trial. Any guilty finding is “permanently noted on the student’s record.”

In practice, investigator Allyson Kurker took only one day to interview most of the witnesses, compared to weeks or months for a standard criminal proceeding. While Seward’s advisor was Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, and delivered a victims’ rights-oriented address after the 2012 sexual assault controversy at Amherst, Doe’s advisor was Torin Moore, a non-tenured administrator whose academic training was in “social justice education.” Doe is suing Moore for incompetent performance as an advisor in the case. In the hearing, Seward produced non-coherent testimony and wrote that she felt “very alone and confused,” so texted a friend to come over and spend the night with her. While Seward initially described the incident as wholly non-consensual, it came to be seen as consensual before changing during a “break” in the oral sex. Kurker admitted in the hearing that the point at which this change occurred was unclear.

In their decision, the panel ruled that while it was credible that Doe was blacked out, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Seward’s claim that she withdrew consent at some point was not able to be challenged by Doe due to the nature of the procedure and a lack of exculpatory evidence, so the panel concluded that it was more likely than not that Doe was guilty. The panel members did not explain how or why they reached a guilty decision. The result is that Doe was expelled and trespassed from Amherst and a no-contact order with Seward was put into effect.

Due to the lack of subpoena power in the investigation, the falsehoods in Seward’s testimony were not revealed until Doe hired an attorney to investigate the case in the spring 2014 semester. The attorney found the text messages quoted above, which were unknown to Doe or the panel during the proceedings. Other messages showed that she texted the other male student prior to the incident with Doe, and resumed flirtatious texting with him after she finished with Doe. According to an affidavit by him, she was “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” The messages to her other friend revealed that she was upset not at being sexually assaulted, but that she had initiated a sex act with Doe and that her roommate would ostracize her if she found out, which later happened. Despite being presented with the new evidence, Amherst declined to reopen the case, leading Doe to file a lawsuit.

Fortunately, the solution to cases and university policies like this may be quite simple. As Robby Soave at Reason points out, “In a twisted sense, administrators were correct to find John Doe guilty. He was accused of sexual assault, and he couldn’t prove the encounter was consensual. Imagine if he had accused her of sexual assault as well—the panel might very well have concluded that they raped each other.” (emphasis mine) If the standard is one of affirmative consent and preponderance of the evidence, then one course of action open to a man is to accuse a woman of rape whenever she performs an unwanted sex act on him. Sometimes fire is best fought with fire, and sometimes arguments are best rebutted by reductio ad absurdum. It may be that the best way to defeat rape accusation culture is to carry it to its logical conclusion and observe the contradictions, such as the impossibility of mutual rape. After all, it seems that the leftist media is intent on advancing this and that even liberal feminist professors cannot challenge it. Should this strategy fail and public universities become places of more blatant and open misandry, then the market can provide alternatives to college and help men escape an unhealthy environment.

Eight observations on the subpoena of Reason Magazine

On June 2, Reason.com was issued a grand jury subpoena by U.S. Attorney Preet Bharara and Assistant U.S. Attorney Niketh Velamoor to give evidence against six commenters on an article published by Nick Gillespie on May 31. The users with screen names Agammamon, Alan, Cloudbuster, croaker, ProductPlacement, and Rhywun are being accused of violating United States Code, Title 18, Part I, Chapter 41, Section 875, which forbids “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another,” and provides a fine, up to a five year prison term, or both for doing so. The six commenters said that Judge Katherine Forrest should and will be killed by vigilantes for her role in putting Ross Ulbricht in prison for life without parole. Their comment thread has since been deleted by moderators. They may also face accusations of violating Title 18, Part I, Chapter 7, Section 115, which outlaws threats against agents of the federal government and provides a fine, up to a ten year prison term, or both for doing so. Eight observations on the incident follow.

1. The First Amendment does not truly protect freedom of speech. Just as the Eighth Amendment is useless for protecting people from excessive bail, excessive fines, and cruel and unusual punishments, the First Amendment is useless in protecting freedom of speech. The interpretation of the First Amendment, like every other part of the Constitution and every law passed under it, is decided by judges who are paid by the state in courts which are monopolized by the state. Therefore…

2. The law is whatever people in black costumes say it is. Without any competition to government law courts, those who sit as judges in those courts get to decide the meaning of the law. This need not be in keeping with common usage or dictionary definitions because there is no effective challenge to their power once the appeals process is exhausted. In fact, this need not even be consistent or impartial because they have the monopoly and their word stands unless their successors revisit a matter and decide otherwise.

3. Government laws will always grant unfair advantages to agents of the state. The incentive of people who are paid by the state is to encourage the health of the state, which means erring on the side of expanding the size and scope of government and prioritizing the protection of government agents above a fair provision of justice. In this instance, two laws taken together say that anyone who communicates a threat against a federal judge may be subjected to a fine, up to a fifteen year prison term, or both. Title 18, Part I, Chapter 41, Section 875 applies to threats communicated to anyone across state lines, but Chapter 7, Section 115 only applies to threats made against agents of the federal government. The law is prioritizing the protection of government agents above a fair provision of justice by making it a more serious offense to threaten them than to threaten an average person.

4. The threat of power has power. In spite of the first three points, a case against the commenters is highly unlikely to succeed. This incident has none of the factors that have led to convictions under the relevant statutes in the past. But the fact that such an inquisition can even be made by government prosecutors creates a chilling effect on political speech, especially that which is critical of the government and its agents.

5. Power exists to be abused. Even though Reason.com has no control over what its commenters say and can only remove offending comments after they are made, and the case against the commenters is highly unlikely to succeed, this incident provides an opportunity to waste the time of Reason’s staff and make the organization pay legal costs, thereby abusing state power to harm a private organization that criticizes the state. Of course, this is precisely the purpose of state power. To quote Bastiat, “Government is the great fiction, through which everybody endeavors to live at the expense of everybody else.”

6. Evil prefers to lurk in the shadows. Niketh Velamoor clearly wanted to keep the subpoena a secret. It contained the standard language requesting non-disclosure:

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the confidentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

Of course, a request made by an agent of the most powerful and dangerous criminal organization in human history will necessarily be interpreted differently than a request made by your neighbor or even your boss, to such an extent that a reasonable person might not think of this as a request. Velamoor went even farther than this, however, in a rather clear effort to intimidate Ken White into refraining from writing about the incident. The question of why government agents would want to keep such an action secret is easy to answer. They would rather restrict free speech without being seen doing so because while power exists to be abused, abusing it in broad daylight results in backlash.

7. The commenters were not calling for anything that is anti-libertarian. The commenters are being investigated for allegedly threatening to carry out a vigilante execution of Katherine Forrest. The initial knee-jerk reaction of most people will be to condemn such an act, but let us examine her conduct. In order for such an act to be within libertarian principles, it would have to be demonstrated that (A) Forrest has committed a crime for which a death sentence is acceptable and that (B) she cannot claim the right to a fair trial. As for (A), in the Ross Ulbricht case, she sentenced a man who was convicted of no malum in se offense to spend the rest of his life in a cage. This is a fate worse than a death sentence in many ways. If you or I did this to someone, we would be facing kidnapping charges, with possible charges of slavery and murder as well for destroying a person’s life and liberty without a legitimate reason. This is a crime for which a death sentence is acceptable, as it is inconsistent to assert one’s own rights to life and liberty while violating the same rights of another person. As for (B), Forrest allowed irregularities by the prosecution in the Ulbricht case and denied the jury important information that they would need in order to make a fair decision. This amounts to denying Ulbricht a fair trial, which means that she cannot consistently claim the right to a fair trial for herself. While it is illegal and tactically unwise to kill or threaten government agents at present, doing so in this case would not be immoral under a logical application of the non-aggression principle.

8. A heavy hand breeds defiance. That Bharara and Velamoor are overreaching is clear from the media coverage their actions have received. A number of the commenters at Reason have also stood in solidarity with the targeted commenters by adding “Woodchipper” to their names, in reference to the offending comments. The tighter the grip of the state becomes, the more people will slip through their fingers to a realization of the need for liberty.

The Laura Kipnis case and the battle against thought police

In February, Northwestern University professor Laura Kipnis published an article questioning the current atmosphere on college campuses concerning sexual relationships in general and relationships between students and faculty in particular. According to Kipnis, an author and professor of media studies, the recent changes made at NU for the supposed purpose of combating sexism are anti-feminist, infantilizing toward students, and presuming the guilt of professors. Some students did not care for her views, and rather than behave like mature young adults who might encounter a disagreeable opinion, get over it, and move on with their lives, they filed complaints against Kipnis with the university’s Title IX coordinator. They engaged in protests and petitioned the administration to condemn Kipnis’ “toxic ideas… because they have no place here.” As the job of a Title IX coordinator is to handle cases of sexual assault or harassment, the implication is that for a professor to publicly disagree with a student outside the confines of a classroom and without direct confrontation is now a form of sexual harassment, a state of affairs once unthinkable even by men’s rights activists, let alone liberal feminists.

Unfortunately, attacks on a professor’s writings outside of the classroom are nothing new. Ten years ago, a similar incident happened to Hans-Hermann Hoppe at UNLV. While his case began inside the classroom and Kipnis’ case did not, both cases ultimately involved essays written by professors which were not directly confrontational toward students and both cases resulted in a lengthy review process. In both cases, students felt entitled to protection from ideas and opinions which bothered them, and sought to silence dissenting voices rather than engage them in rational discourse. The details of the proceedings differ, and Hoppe’s was more serious in both length and potential sanctions, but both cases proceeded outside of established norms for dealing with complaints at their respective universities and neither Hoppe nor Kipnis were allowed to have their investigations recorded. Ultimately, both Hoppe and Kipnis prevailed against their accusers because they were willing to stand up to the forces of political correctness, academic tyranny, and censorship.

While it is good that established academics can survive such inquisitions, the real problem here is still unsolved. That such complaints are even entertained by university administrators creates a chilling effect against academics, especially junior ones, who may wish to express unpopular or controversial ideas. Even a university president can be brought low if one says something outside the box of “allowable” opinion but then caves to pressure from activists instead of standing one’s intellectual ground. This leads to self-censorship and a lack of discussion that is necessary to find solutions to important problems. The most important lesson of the Kipnis case is that the thought police are not yet defeated, and for the sake of liberty they must be.

A case against the Eighth Amendment

One of the most esteemed parts of the United States Constitution is the Eighth Amendment, which reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Certainly, this will sound like a good idea to the vast majority of people. Most people would agree that a state which is allowed to do such things to its subjects can quickly become oppressive and authoritarian. But the Eighth Amendment is not nearly as good or useful as it appears. Let us examine why it cannot achieve its stated objective and why a free (stateless) society would be better off without this standard.

The first thing to note is that the interpretation of this amendment, like every other part of the Constitution, is decided by judges who are paid by the state in courts which are monopolized by the state. Thus, the Eighth Amendment means whatever people in black costumes say it means, which need not be in keeping with common usage or dictionary definitions because there is no effective challenge to their power once the appeals process is exhausted. (There are the possibilities that a judge will be impeached and removed or that the Constitution will be amended, but these possibilities are rare enough to dismiss in most cases.) The incentive of people who are paid by the state is to encourage the health of the state, which means erring on the side of expanding the size and scope of government as well as kowtowing to popular opinion rather than handing down consistent rulings. This constitutes a threat to individual liberty and tends toward the curtailment of civil liberties.

This has produced results both interesting and disturbing. While excessive bail is supposed to be prohibited, a judge is under no obligation to grant bail in the first place if the judge believes that a person is reasonably certain to flee prosecution and/or commit additional crimes if released. A denial of bail is functionally equivalent to a bail that is set infinitely high, which would be as excessive as possible. Bail also tends to be set in such a way that only the rich can afford to pay it themselves, thereby making the poor and middle classes deal with bail bondsmen and lose roughly 10 percent of the bail amount to them. This can be difficult to challenge because what is excessive versus what is reasonable is a subjective value judgment and higher courts have a tendency to side with lower courts unless there is a compelling reason not to do so. Fines are even less likely to be overturned on appeal for being excessive, and judges have a wide latitude in deciding how severe a fine to impose on a defendant. Only if a fine is “arbitrary, capricious, or so grossly excessive as to amount to a deprivation of property without due process of law” will it be overturned on appeal, and this is rare.

The prohibition of cruel and unusual punishments is similarly untrustworthy. A punishment is not cruel and unusual if it is not unusual, so a cruel punishment can be legitimized simply by using it more frequently. Going the other way, this means that the Eighth Amendment can only serve as the final end for a punishment that is on the path to obsolescence anyway, once it reaches a point where judges consider it to be unusual. In practice, this has come to mean that the allowed punishments are whatever the Supreme Court deems appropriate, based upon their subjective views on what constitutes cruelty. Also noteworthy is that this can mean that the punishment for a crime can differ in harshness based on time and place, and while this has historically trended toward less cruel punishments, there is no reason why this trend could not reverse someday.

Now that we have seen how the Eighth Amendment has not achieved its stated purpose, let us explore the case for why a free society should go without such a provision. A society without a state has no monopoly on criminal justice, so there is no need to restrain a power which does not exist in the first place. With a multitude of companies seeking to provide the greatest sense of justice to their customers at the least cost, the sort of abuses that the Eighth Amendment seeks to prohibit would be disincentivized by market forces, which tend to be far weightier than words upon dead animal hides. Without a government monopoly on courts, a troublesome interpretation of a legal principle could be disregarded by a boycott of the offending judge and/or the judge’s dispute resolution company.

But what of excessive bail, excessive fines, and cruel and unusual punishments? As mentioned before, a judge can deny bail in the current system if the judge believes that a person is reasonably certain to flee prosecution and/or commit additional crimes if released. But a better option may be to set an excessive bail for such a person. If it is paid, then whoever pays an excessive bail to free a person accused of criminal wrongdoing is making a costly and risky investment, one which would be expected to bring a strong return. Just as now, the person posting bail would assume responsibility for the accused, with the possibility of bounty hunters pursuing the accused should they try to jump bail. Admittedly, this would be rare, both because the several dispute resolution organizations would result in speedier trials and the danger that such a person cannot be trusted to fulfill the terms of a bail contract.

Excessive fines can also play a role in a free society. Such an action would be a soft variant of ostracism, as it would strongly incentivize a person to leave an area but fall short of a hard banishment from the area. Failure to pay the fine would keep one from doing business with that court company and create a blight upon the reputation of the scofflaw, leading other people in the area to cease business relationships with the person, especially those who also use that court company. While a few people might opt to buy their way back into the good graces of the community, most would get the message that their presence is unwanted and leave.

Cruel and unusual punishments may seem antithetical to a free society at first glance, but let us take a closer look. It is generally accepted that the punishment should fit the crime. Unfortunately, the standards of the Eighth Amendment make that impossible because there are cruel and unusual crimes and a ban on cruel and unusual punishments means that the punishments for those crimes will not fit. Such standards also eliminate the chilling effect on monstrous crimes that a painful and public execution can produce. Let us consider two examples.

1. Albert is an arsonist. In addition to destroying buildings and croplands, his fires have killed people. Burning at the stake would be a punishment that fits his crime, as it would kill him in the manner that he has killed innocent people and he cannot legitimately object to a taste of his own medicine.

2. Beth is one of the few unrepentant statists remaining in an anarchist world. She seeks to restore the state and uses initiatory force towards the end of ruling her fellow human beings against their will. Given the carnage wrought by states throughout history (about 300 million deaths in the 20th century alone), there is really no punishment severe enough for a person who would seek to restore such a system and undo what will have certainly been a herculean and generational effort to end statism. Just as states charge people with treason and kill them for taking direct actions to end the state, a stateless society would be justified in charging those who try to re-establish the state with “inverse treason” and executing them upon conviction.

In both cases, many people may find such punishments to be abhorrent and a free society may choose to handle these situations more mercifully. But to rule out cruel punishments for such exceptionally destructive criminals is to say that the punishment must not fit the crime and the deterrent effect of such punishments is never worth having.

In fairness, a free society need not abandon the standards of the Eighth Amendment, but there is a clear rationale for doing so.