The Curious Case of Net Neutrality

Everyone please welcome Insula Qui, our first additional writer at Zeroth Position.

Last week, many libertarians came out in support of a major government program. This would seem odd to many onlookers, as libertarians are supposed to believe in free markets and their efficient allocation of resources, but this issue has divided libertarians like few others. This program is net neutrality, and even anarcho-capitalists have managed to justify supporting it on some occasions, although that is much rarer.

To explain the problems within the concept of and support of net neutrality, a working definition is required. In essence, the point of the regulation that assures the net will stay neutral is to ensure an egalitarian allocation of bandwidth among people and websites. This means that no Internet service provider (ISP) should be able to charge extra for access to certain websites or discriminate when it comes to the Internet in any other way. This seems good and necessary at first glance, but even a cursory examination defeats this. Net neutrality was adopted in 2015, which means that for most of the existence of the Internet, there was no need for any legislation. Yet this legislation was created, not because any ISPs were being unfair, and not because ISPs were considering being unfair. The only reason why net neutrality was created and subsequently passed was to ensure that the Internet would stay the same as it always had been. It turns out that we apparently require massive legislative efforts to ensure that absolutely nothing would change.

The Past Is Prologue

To understand why this debacle started, we must examine the origin of the troubles. The legal procedures were initiated by the situation that was going on between Netflix and different ISPs. The entire spectacle may be summarized as follows: Netflix was using so much data that it was getting slower. That was the entire problem that Netflix had with the ISPs, and that was the start of the entire legislative progress to instate net neutrality. (What was going on was slightly more complicated, but that was the gist of their complaint.) Various streaming services were growing larger on the Internet, so the ISPs were faced with a lot of bandwidth consumption on a continuous basis. With streaming, it is impossible to load the entirety of the data quickly because there is so much of it, meaning that the bandwidth is constantly and intensely used. Since streaming was so popular, there was bandwidth constantly in use and since bandwidth is a limited resource, the streaming sites were getting slower, which was reflected in their bottom line. Because the streaming sites were getting so popular and using gigantic amounts of data and bandwidth, they could not expand more without getting slower and thus expanding less.

This was a problem created by streaming platforms that mostly affected said platforms. ISPs would lose some profitability, but they would still keep most of their profits if they handled streaming more slowly. Most sites without streaming would be affected much less, as they did not need this continuous stream of data and the few thousandths of seconds by which they would have been slower would have gone unnoticed. Netflix and other streaming sites were unable to fix the problem on their end; they already use every compression mechanism possible to optimize their storage and streaming capability without compromising the quality so much that the experience is reduced. Thus, the streaming sites were completely at the mercy of the ISPs to fix this problem. The heroic ISPs rushed in to help the streaming sites, offering to build new infrastructure and give the streaming sites priority in the use of that infrastructure. There was one caveat; the streaming sites would have had to pay for it, which would have caused a drop in their profits, which would have eventually made them increase streaming prices to remain sustainable. Because even the smallest increase would scare off marginal users, this was not in the self-interest of the streaming sites.

Therefore, the streaming sites started advocating net neutrality, claiming that being charged to fix the problem that they caused for themselves was somehow discriminatory to the freedom of the Internet. They also claimed that the ISPs were throttling access to their sites, and that because they could not expect the ISPs to build their infrastructure for them meant that ISPs were planning to turn the Internet into something unfree. In their view, the way to increase freedom with respect to the Internet is obviously to give the government giant amounts of legislative control over it. Because of the appealing notions that the little guy should not be discriminated against by the big scary ISPs, and that the ISPs should not make certain websites into subscription services, a large Internet bandwagon took shape. Almost every large platform took the side of net neutrality, for the sake of fairness and freedom, of course. Even people who constantly tout their knowledge in basic economics were extremely happy that the state could ensure that the ISPs would not discriminate against information that they dislike or try to rent seek on their monopoly.

Statist Problems and Market Solutions

Having described the frankly ridiculous situation, we must look at the problems within this approach, of which there are several. First, there has never been any reason to suspect that any ISP would move to a subscription service model or that they would artificially restrict information they dislike. This has never been actualized and has never been a close concern; it is based on conjecture on par with the implication that warlords would take over without the state. Second, bandwidth is a finite resource; there is not infinite Internet service to go around. This can be improved greatly with increased infrastructure, but this is not cost effective to the ISP.

To fix this, two steps may be taken. Bandwidth could be restricted in one area so others can get more bandwidth, or the company that needs more bandwidth should pay for additional infrastructure, both of which violate net neutrality. This is, in essence, a problem of trying to redistribute bandwidth from the smallest users to the largest users. When bandwidth needs to be equitably arranged, the people who use the least bandwidth would need to use even less to subsidize the people who use more bandwidth. The bandwidth for a neutral use could not come from anywhere else. This is somehow supposed to protect the little guys and make sure that the Internet is accessible for everyone.

The next problem is that this prevents selective Internet access for people who use the Internet for very specific purposes. If one needs to allocate one’s bandwidth to some very certain areas and does not care about the rest and is fine with that being slow, one could very well have the ISP provide a service of throttling certain sites and increasing the speed of others. And these are just the problems when we assume that net neutrality is really supposed to provide for a neutral net.

In reality, it has been the case that giving control over services to the government is generally a bad idea; more often than not, the state abuses all powers it has and creates as many powers as it thinks it should have. Thus we may understand how it could be that having the FCC in control of determining even more in the way of how ISPs act may not be the best idea. It may be that increased regulation would do even more harm to any new ISP that would try to attempt to provide this service. This all is compounded by the fact that the entirety of the problem of monopoly in the provision of the Internet is caused by the government in the first place.

It is not as though the Internet is a natural monopoly; no matter what many would have us believe, natural monopolies do not exist; just the optimal size of firms differs. However, when an industry is over-regulated, it will become less competitive as the barrier to entry into that industry is increased. It happens to be that the Internet is one of the most regulated industries.

There are huge issues with providing cables; thousands of people whose approval is needed, dozens of restrictions and last mile rules, etc. The government has a firm grasp on the net no matter what. This is best exemplified with the legal issues Google Fiber has been having when trying to establish themselves as a competitor to the current oligopoly. A company as powerful as Google has been unable to establish themselves in the market due to legal issues, as cost is certainly not a problem for them if they think they will outcompete the existing systems. Without this state-imposed oligopoly, there would be no problems with competition within the Internet. The optimal size of firms is probably much smaller than the firms which exist now. The market would do its job, the provision of the Internet would be decentralized in its construction, and quality would increase while prices fall.

Libertarians Against Cyber-Liberty

However, this does not seem to be a priority to many people, as most claim that we must regulate companies to solve problems that regulation created in the first place. To them, the only way to combat problems caused by the government is with an increase of government control in that area, the problems caused by this control need to be fixed by additional government control, and so on.

Unfortunately, it seems as though many libertarians, instead of sticking to their free market principles and trying to solve the problem that government regulation caused in the market of providing the Internet, are apathetic about this original regulation. It is almost as if these libertarians think that if the government was more involved in the market, then the market would be more free. This is not Internet-libertarianism, but Internet-communism. What else can one call the desire to redistribute bandwidth equally among all by the force of the state?

Book Review: Closing The Courthouse Door

Closing The Courthouse Door is a book about role of the judiciary in the American system by law professor Erwin Chemerinsky. The book examines how Supreme Court decisions over the past few decades have greatly limited the ability of the courts to protect civil liberties, hold government accountable, and enforce the Constitution. The book is divided into seven chapters, each of which focuses on a different aspect of the problem of reduced access of the American people to the courts.

In the first chapter, Chemerinsky argues that if rights cannot be enforced and damages cannot be awarded by the courts, then the government and its agents may do as they please, as unenforceable limits are functionally equivalent to no limits. He views Marbury v. Madison as a cornerstone of American jurisprudence rather than a usurpation of power not granted by the Constitution, and views the Constitution as an effort to limit government rather than as an expansion of government beyond what the Articles of Confederation allowed. Chemerinsky makes a case for the judicial branch being the most suitable branch for enforcing the Constitution, then addresses and rebuts several competing views of the role of the judiciary.

Sovereign immunity is the focus of the second chapter, and Chemerinsky shows how the idea that the state can do no wrong is at odds with many American values and constitutional principles, including federalism, due process, and government accountability. However, the Supreme Court has made numerous rulings expanding sovereign immunity since the time of the Eleventh Amendment‘s adoption, making it virtually impossible for a citizen to obtain a redress of grievances when victimized by the state. He tackles several arguments in favor of sovereign immunity, such as protecting government treasuries, separation of powers, and the existence of alternative remedies. Next, Chemerinsky examines how case law has granted effective immunity to local governments, even though they do not officially have it.

In the third chapter, Chemerinsky continues with the theme of immunity by discussing it at the level of government agents. He discusses the Bivens case, which allows federal agents to be sued for damages if they violate constitutional rights, and the subsequent hostility of the Court to that decision. Disallowing suits when Congress provides an alternative remedy, when Congress says they are disallowed, when military personnel are defendants, when judges find it undesirable to allow such claims, or when private prisons and their guards are defendants, has all but overruled Bivens. Furthermore, Chemerinsky argues that absolute immunity for certain government officials should be replaced by qualified immunity to give the officials room to work but hold them accountable.

The fourth chapter details how various Supreme Court decisions have narrowed the ability of citizens to bring matters before the courts. Chemerinsky explains how the doctrine of standing has been invented and used to keep actions which do not have particular identifiable victims from being adjudicated. He argues that the narrow interpretation of what constitutes an injury and the refusal to hear claims based on a generalized grievance that all Americans suffer mean that no one is able to challenge the government in court when it violates the Constitution. The second half of the chapter covers the political question doctrine, and Chemerinsky makes the case that it is essentially a punt by the judicial branch to the elected branches of government with the end result of trusting them to follow the law, which history shows to be an unrealistic option.

The gradual erosion of the writ of habeas corpus is discussed in the fifth chapter. Here, Chemerinsky shows how the Supreme Court has upheld vastly disproportionate prison sentences on technicalities, kept federal courts from enforcing the Fourth Amendment through habeas corpus, disallowed claims not made and evidence not presented in state courts from being heard in federal courts, barred arguments for novel rights that the Supreme Court has not yet recognized, and prevented prisoners from filing multiple habeas corpus petitions. He explains how the Antiterrorism and Effective Death Penalty Act has all but removed the right of habeas corpus at the federal level.

In the sixth chapter is called Opening the Federal Courthouse Doors, but the chapter actually shows even more examples of them being closed. For example, plaintiffs can now be required to show facts without being allowed to go through the discovery phase of a case that is required to learn those facts, setting up a catch-22. The abstention doctrine created in Younger v. Harris and is cited as a major barrier to the proper operation of federal courts as well as a means for state officials to abuse citizens. Chemerinsky then discusses the difficulties in using class action lawsuits that have been imposed in recent years as well as the rise in private arbitrations that favor corporations over individuals.

The final chapter begins with cases involving egregious human rights abuses by the CIA. These cases were dismissed on the grounds that state secrets might be revealed if the cases were tried, which is yet another way to keep courts from enforcing the Constitution. Chemerinsky concludes by addressing objections to the arguments made through the entire book.

The book is just over 200 pages, but feels as long as any 400-page book that I have read. To his credit, Chemerinsky’s left-wing political leanings do not appear any more than they must in order for him to make his arguments. Libertarians will undoubtedly think that the changes proposed in the book do not go nearly far enough, but Closing The Courthouse Door is still worth reading for those capable of handling the subject matter.

Rating: 3.5/5

A Squandered Opportunity Against Judicial Activism

On June 26, the Supreme Court announced its decision in the combined cases of Trump v. International Refugee Assistance Project and Trump v. Hawaii, which involved challenges to Executive Order 13780. This order concerns the entry of foreign nationals into the United States, and is best known for suspending entry of nationals from six designated countries for 90 days.

The defendants challenged the order in two separate lawsuits, obtaining preliminary injunctions barring enforcement of several of its provisions, including the 90-day suspension of entry. The injunctions were upheld in large measure by the Courts of Appeals in the Fourth and Ninth Circuits. The Justices decided by a 9-0 vote that the defendants in both cases lack standing and that the injunctions against the 90-day suspension are partially removed, allowing the ban to take effect against “foreign nationals who do not have a credible claim of a bona fide relationship with a person or entity in the United States.”

Supporters of President Trump’s travel ban were predictably elated by the decision, even though the cases will not be heard in full until the next Supreme Court session in October. Detractors of Trump’s immigration policies were disappointed, calling it discriminatory, hateful, and Islamophobic. But there is a greater concern than public opinion of the preliminary ruling or the eventual outcome of the case. Regardless of this result or the next, Trump has largely squandered an opportunity to act against a much greater problem: that of judicial activism.

The Past Is Prologue

The judicial branch in the United States has a long history of overstepping its constitutional role. In Marbury v. Madison (1803), the Court invented for itself the power of judicial review, which is nowhere to be found in the Constitution. Because Congress and the state legislatures did not act to reverse this usurpation of power, it remains the statement of ultimate sovereignty in American law. Since Marbury, Supreme Court decisions usually have been the final say in a dispute, unless a Constitutional amendment or future Supreme Court reverses a decision. Furthermore, the Supreme Court regularly issues writs commanding action or inaction from the legislative and executive branches. In various decisions that “find” new rights imbedded within the Constitution and/or determine the winners and losers in society, the Court acts as a political branch of government that masquerades as an impartial arbiter. This is to be expected, as the judicial branch is not truly independent, being part of the same state apparatus of the other branches and thus subject to many of the same perverse incentives. The end result is judicial activism, in which the courts are used to advance a progressive socioeconomic agenda.

Three Presidents stand out in American history for their ability to defy the will of the courts and advance their agendas despite judicial opposition: Thomas Jefferson, Andrew Jackson, and Franklin Delano Roosevelt. These administrations shared several characteristics; all had a strong executive, an agenda at odds with previous administrations, majorities in both houses of Congress to assist them, an appeal to the common man, flawed and/or weak political candidates opposing them, and were on the left side of the politics of their day. Interestingly, historians look upon these three Presidents as being among the best. The Trump administration has almost all of these characteristics, lacking perhaps the leftism and Congressional assistance that the others had.

Trump’s Options

If Trump wins the broader case in the next Supreme Court session, it will be a small victory for him and for those who seek stricter immigration standards. If he loses and accepts the result, then he is the next Ronald Reagan, who talked the talk but generally failed to walk the walk. But if he had ignored the injunctions from the US District Courts and the Fourth and Ninth Circuit Courts of Appeals, it could have been a decisive victory. Andrew Jackson apocryphally said when the Supreme Court ruled against his policies in Worcester v. Georgia (1832), “[Chief Justice] John Marshall has made his decision; now let him enforce it!” Trump would have done well to say something similar and act upon it when faced with the lower court rulings. He may still do so with the Supreme Court if it rules against him, but much of the effect will have been lost in the passive approach.

Ensuing Struggle

The response from the establishment to such an act of defiance by a maverick President would be swift and terrible. Democrats in Congress would unite in a call for impeachment, arguing that the President is acting like a totalitarian despot and is in contempt of court, a “high crime or misdemeanor” in Constitutional terms. The establishment press would devote all of their airtime to attacking him and accusing him of causing a constitutional crisis, to the exclusion of covering other important news stories. Academia and leftist organizations would likewise sound the alarm, using Trump’s conduct as both a funding opportunity and a casus belli for street violence. Let us consider the likely reponses to these developments by Trump and Congressional Republicans, as well as how the left’s response would help the cause of liberty.

A call for impeachment by all Democrats would show the American people just how little respect the coastal elites have for the heartland of America, as they would be seeking to overturn the election of the first President in decades who was elected by them to represent their long-forgotten interests. The support, ambivalence, or opposition to the call for impeachment from each Republican in Congress would give the American people important information about where each member stands. Trump, for his part, could respond by declassifying documents in order to release the skeletons in the closet of every member of Congress who opposes him. He could also hold political rallies to gather his supporters and mobilize them against his opponents. Finally, he could remind people that immigration enforcement is an executive function rather than a judicial function and make a separation of powers argument for ignoring the courts. Regardless of what happens to Trump, he could make the 2018 midterms a nightmare scenario for the GOP if they would oppose him as well. This would potentially help the cause of liberty by removing ineffective opposition to the Democratic Party.

A exclusive focus on attacking Trump by the establishment media would only hasten their demise, as he has routinely defeated them by correctly portraying them as enemies of the people and successfully turning their “fake news” phrase against them. Their credibility is at an all-time low and many people trust Trump more than them, meaning that a large segment of the population would not believe them even if what they say about Trump is true. The accusation of causing a constitutional crisis would be true, but such an action is necessary at this point to begin tackling the problem of over two centuries of rule by judges. The corresponding lack of coverage of other news stories coupled with the one-note chorus of the establishment media would work wonders for alternative media firms. Leftist academia would react in much the same manner as the media, which would provide a pretext to defund them, reduce government involvement in student loans, and encourage alternative career paths which do not require university degrees.

Leftist organizations would be unable to pass up the fundraising opportunity that a battle between Trump and the political establishment at the level of President versus Supreme Court would provide for them, and this could be used against them. Many of these organizations routinely overstep the bounds within which they are supposed to operate, especially for the purpose of maintaining tax-exempt status. Strictly enforcing tax laws against them would be a politically popular response which they could not argue against without undermining their stated political positions. Left-wing activists are no strangers to hypocrisy, but the extent of their exposure in recent years is a novel development. Using the IRS and DOJ against left-wing organizations would be a rare use of such powers to defend liberty.

The more radical leftists would join the communist terror group Antifa in the streets, calling Trump’s defiance of the courts the act of a lawless regime and responding with their own lawlessness by attacking innocent people and destroying property. But Antifa has already been found wanting as soon as counter-demonstrators showed up to confront them, and another surge on their part will likely be met by more anti-leftist mobilization of both police and private defense organizations. Violent suppression of the radical left would ensue, which is a necessary prerequisite for a stable social order. Meanwhile, Trump would be able to use such events to portray himself as the sane man against insane opponents.

Aftermath

Should such a move lead to Trump’s impeachment and removal, the American people would be sent a clear message that even a moderate change of course will not be allowed to take place by working within the political system. Thus, solving longstanding problems and moving toward a condition of liberty requires anti-political methods. The ruling class is almost certainly aware of where this strategic line ultimately leads them, so they are not likely to actually remove Trump from office. On a less extreme level, removing Trump would presently require the cooperation of at least 96 House Republicans and 19 Senate Republicans. This would endanger many of those members in their re-election bids, especially if Trump took an active role in funding and campaigning for their primary challengers. Finally, an impeachment effort that proceeds and fails at this point would cause the Democrats to lose even more political status, perhaps even making them a long-term minor party.

The greatest difficulty in determining the aftermath of Trump ignoring the courts is that enforcement agents within the relevant agencies may or may not side with him. The police response to incidents between Antifa and the alt-right indicate a potential conflict between rank-and-file enforcement agents and their commanders, which Trump could resolve in his favor in many cases by removing and replacing key subordinates in the Departments of Defense and Homeland Security. The most dangerous possibility is for a federal judge to have the US Marshals enforce an order against armed agents of ICE or another federal agency involved with homeland security, but the state physically attacking itself is a win for liberty. However, this is an unlikely result because everyone involved has an interest in preventing it.

The most likely outcome would be what happened in Australia when Prime Minister Tony Abbott faced similar circumstances. With a popular mandate to stop an influx of migrants after his predecessor attempted to do so and was overruled by the courts, Abbott stopped the migrants and ignored the courts when they attempted to overrule him. The judges backed down and the precedent that the executive gets to make decisions within the purview of the executive branch was set. American courts would likely react to Trump in a similar fashion, as the aforementioned escalation to one type of armed federal agent confronting another would be more damaging to the court’s prestige than retreating to the proper scope of the judicial branch.

Conclusion

Ignoring a federal court order is a dangerous proposition, but doing so has the potential to begin solving a larger and more pervasive problem than the current immigration situation. Judicial activism is responsible for much of the degeneracy in American culture and politics, including the immigration situation. Countering this is an ultimate imperative for those who would restore liberty. Though the travel ban is not a particularly libertarian undertaking in and of itself, the particular course of action recommended here is because of its wider implications.

A Case Against the Eleventh Amendment

The first amendment to the United States Constitution following the Bill of Rights is the Eleventh Amendment, which reads:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

This Amendment was ratified in 1795 in response to the Supreme Court decision in Chisholm v. Georgia (1793). The case came from the Revolutionary War, when Captain Robert Farquhar, a resident of South Carolina, supplied goods to the state of Georgia for which Georgia did not fully pay. Farquhar died in 1784. In 1792, Alexander Chisholm, the executor of Farquhar’s estate, filed suit against Georgia in the US Supreme Court over payment that Georgia still owed for the goods. US Attorney General Edmund Randolph argued the case for Chisholm, but government officials in Georgia claimed sovereign immunity and refused to appear. The Court found by a 4-1 margin that the grant of federal jurisdiction over suits “between a State and Citizens of another State” in Article III, Section 2 of the Constitution granted federal courts the power to hear cases between private citizens and States, and that States did not enjoy sovereign immunity in such cases.

The Eleventh Amendment was written mostly for the purpose of overturning the Chisholm decision, which stands as one of only a handful of court rulings to be overturned by a Constitutional amendment. The ruling in Hollingsworth v. Virginia (1798) held that every pending action under Chisholm had to be dismissed due to the ratification of the Eleventh Amendment. The only remaining way at the time for a state to be sued by non-residents of the state was for that state to consent to the suit.

Since then, three Supreme Court cases have made further exceptions to a state’s sovereign immunity. Fitzpatrick v. Bitzer (1976) held that Congress may abrogate the sovereign immunity of a state pursuant to a valid exercise of the Fourteenth Amendment, Central Virginia Community College v. Katz (2006) held that Congress may do the same in bankruptcy cases through Article I, Section 8, Clause 4, and Lapides v. Board of Regents of University System of Georgia (2002) held that a state waives the Eleventh Amendment if it invokes a federal court’s removal jurisdiction, which is the right of a defendant to move a lawsuit filed in state court to the federal district court for that location.

To make a case against the Eleventh Amendment, we will first note the problems with its interpretation, then we will examine the failings of the doctrine of sovereign immunity in general, as refuting this doctrine defeats the Eleventh Amendment a fortiori.

Procedural Problems

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 Eleventh Amendment means whatever people in black costumes say it means, which need not be in keeping with common usage or dictionary definitions because effective challenges to their power once the appeals process is exhausted are almost nonexistent. (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. Chisholm and the Eleventh Amendment are a rare exception to the latter.) 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, kowtowing to popular opinion rather than handing down consistent rulings, and reducing government accountability. This constitutes a threat to individual liberty and tends toward the curtailment of civil liberties.

In their interpretation of the Eleventh Amendment, the Court has consistently sided with state governments and expanded sovereign immunity beyond the text of the Amendment. The Court has shielded states from nearly all monetary damage actions brought in any court. The text does not mention a state’s own citizens, but in Hans v. Louisiana (1890), the Court interpreted the Eleventh Amendment to give a state sovereign immunity against citizens of that state. Justice Anthony Kennedy wrote for the 5-4 majority in Alden v. Maine (1999),

“[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. … Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.”

This, despite what Justice David Souter observed in the dissenting opinion,

“The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts.”

Souter’s dissent in Seminole Tribe v. Florida (1996), another 5-4 decision defending sovereign immunity, is also illuminating:

“There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common-law power defeasible, like other common-law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common-law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the Court’s position. […] [S]everal colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued.”

Souter’s dissents demonstrate that there is no textual basis in the Constitution for sovereign immunity. But even if there were, the concept should still be opposed. In the next two sections, we will see why.

Problems With Sovereign Immunity

There are a multitude of problems with the concept of sovereign immunity. First, sovereign immunity denies compensation to victims of statism. Those whose rights are grossly violated by government agents are deprived of a redress of grievances by sovereign immunity, as well as meaningful peaceful recourse. Second, immunity for government agents denies due process to the citizenry because due process requires a judicial forum, which sovereign immunity denies to those whose cases are dismissed on such grounds. Third, the unwillingness of courts to hear cases in which states violate legal provisions that are intended to limit state power can render those provisions unenforceable, and an unenforceable law is functionally equivalent to no law at all. The people are thus left to rely on the good faith of governments that they will not abuse the people, which if history is any guide, is not a realistic strategy.

Fourth, that who are immune from civil damages and criminal punishment are unaccountable is a tautology, so sovereign immunity is obviously incompatible with government accountability. Fifth, this lack of accountability creates a moral hazard for those who wield state power. Any such unaccountable power is magnetic to the corruptible, who would abuse that power for their personal gain and the health of the state at the expense of the people. Sovereign immunity thus incentivizes the worst people to seek positions in government in order to abuse state power. Sixth, any just system must be no respecter of persons or affiliations. But the doctrine of sovereign immunity creates a double standard; some people may violate the law with impunity while others may not. Thus, equality before the law is impossible in the presence of sovereign immunity.

Finally, the absence of a peaceful method of obtaining justice through an established system means that those who demand justice must either live without or seek justice violently on their own. Though this is morally justified when done by citizens against government agents, there is a greater possibility of irreparable errors being made through vigilante methods than through judicial methods. There is also a risk of chaotic societal breakdown if vigilantism should become normalized in the absence of the organization and alternative institutions necessary to replace the state with a superior form of social order. Eliminating sovereign immunity would open a new avenue for obtaining justice peacefully.

Objections

In addition to making the case against sovereign immunity, it is necessary to refute the common arguments in its favor. First, proponents will argue that allowing people to sue the state for damages will endanger the public treasury. This could allow people to gain private ownership of government buildings as payment for civil judgments if the treasury is bankrupt, as well as pass on financial burdens to taxpayers. The standard counterargument is that these concerns are outweighed by the positives of eliminating sovereign immunity that were enumerated in the previous section. The sharper counterargument is that these are features rather than bugs. The money in the public treasury was obtained by demanding money from the citizenry and threatening them with violence for nonpayment. Although a monetary judgment would not, for the most part, return these funds to their rightful owners, the recipients would hold the money more justly than the thieves who call themselves by the euphemism of tax collectors. Government buildings are likewise built and maintained by extorted money, and are generally built upon conquered or otherwise stolen land. Passing on financial burdens to taxpayers is a moral evil, but this could be partially remedied by cleaning out the finances of individual government personnel and/or auctioning government assets before tapping into the treasury. On the other hand, increasing the tax burden on the citizenry may inspire them to either leave the state-sanctioned economy for the informal economy or think in revolutionary terms.

Second, there is the argument that sovereign immunity preserves separation of powers by preventing the judiciary from dominating the executive branch. But because a lack of ability to sue the government removes accountability, neuters provisions that limit state power, and creates moral hazard, sovereign immunity removes the very sort of checks and balances that its proponents claim to protect by keeping the judiciary from restraining the executive branch.

Third, there is the argument that there is no authority in the Constitution or other federal law for suits against the government. This is not an argument for the righteousness of sovereign immunity; only an argument that it currently exists. By this argument, such authority need only be created by Congressional legislation or a Constitutional amendment if it did not already exist. But such authority already does exist under the Constitution in its mandates for due process, government accountability, and the supremacy of federal law.

Fourth, there is the argument that adequate alternative methods for redress exist, making the elimination of sovereign immunity unnecessary. Not only does this argument fail to deal with the problems described above, but there are not always alternative methods. Injunctive relief redresses future violations but not past violations, suing individuals may not produce sufficient civil judgments, and statutes may immunize government agents from suit. This argument would once again leave people to rely on the good faith of governments that they will not only not abuse the people, but will perform restitution when they do.

Finally, defenders of sovereign immunity will appeal to tradition, citing the fact that the United States government has enjoyed some form sovereign immunity for most of its history, as have its constituent states. For example, in United States v. Lee (1886), the Court held that “the United States cannot be lawfully sued without its consent in any case.” But appeal to tradition is a logical fallacy; there should be some other reason for continuing a policy besides its longstanding in order to validate the choice.

Conclusion

It is clear that the doctrine of sovereign immunity causes many problems, and that the arguments in favor of it are easily refuted. Further, there is no basis for it either within the text of the Constitution or in a nonoriginalist view. Repealing the Eleventh Amendment and ending sovereign immunity for US states would be a positive step, but it would not go far enough. As shown above, all sovereign immunity should be ended so that agents of the state may be held to the same moral standard as everyone else and many abuses of power may be prevented.

The Benefits of a Trump-Russia Conspiracy

One of the most prominent news stories of the early days of the Trump presidency is the alleged conspiracy between officials in the Trump administration and members of the Russian government to help him get elected. The allegations that Russian intelligence agents interfered in the 2016 election are not going away, despite a lack of clear evidence for such claims. Relationships between senior administration officials and Moscow have come under intensified scrutiny in recent weeks, following Trump’s firing of FBI Director James Comey, who was investigating such connections. But so far, what collusion is known to have occurred did not violate any laws.

As expected, the political and pundit classes are divided along ideological lines. Democrats and establishment Republicans are determined to find a scandal, while Trump supporters insist that this is a conspiracy theory and witch hunt. As usual, the sharpest argument on the issue is going unexplored by the chattering classes: that such a conspiracy, if it has occurred, would be beneficial. Therefore, let us consider the positive results that would occur if a conspiracy between Trump’s campaign and/or administration and the Russian government is proven, as well as the benefits of such collusion.

Un-Intelligence Agencies

If investigators find an improper connection between Trump and Russia, it will thoroughly discredit all of the US government’s intelligence agencies. A foreign power managing to successfully conspire with a presidential candidate in order to install someone who owes them favors at best and is their puppet at worst is exactly the kind of event that those agencies are supposed to prevent. A failure of that magnitude would signal that the leading positions in the US government are vulnerable not only to foreign interference, but to a hostile takeover by agents of a foreign government by means of a Manchurian candidate. Should this be the case, it would be clear for all to see that the government in general and the office of the Presidency in particular are too powerful.

To fail to prevent a declining second-rate power like Russia from altering the outcome of an election should finish off the American people’s trust in these agencies. Their trust has already been diminished by the revelations of Edward Snowden and the general failure of these agencies to do much besides entrap ‘terrorists’ of their own manufacturing, so such a spectacular failure might be the last straw. In a world where centralized statist means of security are increasingly ineffective and decentralized private alternatives are necessary, such a revelation could provide the impetus for a complete rethinking of the provision of security.

Preventing War

As the quote frequently misattributed to Lenin goes, “The best way to control the opposition is to lead it ourselves.” If Trump is compromised by Russian influence, as the conspiracy theorists claim, then war between the United States and Russia becomes pointless from a Russian perspective. Why engage in hostilities with a nation when one has influence over its leadership, but not enough influence to overcome the disparity in military capability? More progress can be made from their position by working with a friendly American president who is compromised by them.

In the world today, there is no greater potential threat to American and Russian citizens than a war between their governments, as each side has nuclear weapons and the great advantage that the United States enjoys in conventional military firepower would encourage Russia to escalate to a nuclear exchange. Of the two major presidential candidates, Clinton was the most bellicose toward Russia and its client state in Syria, and her interventionist position on the Syrian Civil War had great potential to bring American and Russian forces into direct conflict with each other. In the estimation of a competent Russian policymaker, it was in the best interest of Russian citizens (and everyone else, for that matter) for Russia to interfere in the US presidential election to help Trump win, especially by means that would create a sense of reciprocation once Trump is in office. Given the stakes involved, increasing cooperation between the United States and Russia is more important than the means used in so doing.

Delegitimizing The System

Those who hope for the accusations against Trump to be true may not appreciate the logical conclusions of the result they anticipate. If Donald Trump, why not anyone else? If the Presidency, why not any other office? If 2016, why not any other election year? Such a scandal would call into question the democratic process in the United States at every level. Senators, governors, mayors, county commissioners, and all of the rest would be at least as suspect, if not more so. Though such offices lack the power of the Presidency, the resources needed to infiltrate and commandeer such offices are far fewer. These offices could be used to accomplish particular foreign policy goals of Russia, China, or another rival power, such as hampering the construction of a military base in a particular state or blocking funding for anti-ICBM defense systems. Given the power that state and local governments have over the daily lives of citizens, a few solid plants in key positions could do significant damage.

If the process for selecting politicians is compromised, then the laws they pass and policies they enact are compromised a fortiori. The chaos injected into American political life by this realization is scarcely imaginable. Reams of legislation and regulation would need to be examined and possibly invalidated on the grounds that they were not properly ratified. Politicians and judges would be scrambling to figure out the correct precedent to set for dealing with such an event. Should they be in error (and they likely would be), their perceived legitimacy would be greatly diminished. Leaving dubiously passed laws and regulations in place would taint the perceived validity of the whole United States Code and federal regulations, while examining them all would take entirely too much time. The third option of eliminating many of these policies would provide a rare opportunity to repeal a large amount of burdensome legislation and regulation.

Additionally, all of the appointments the politicians have made would come into question, from department heads all the way up to Supreme Court justices. This would call all of their decisions into question as well. When someone points out that these politicians and judges have a conflict of interest because they themselves might be compromised by foreign influence, the American people might even get to witness a Mexican standoff of “Are You A Soviet Spy?” between government officials, which would be thoroughly entertaining, if nothing else.

Should Congress try to impeach Trump over a revelation that his election was compromised by Russia, it is likely that he would respond by declassifying and speaking about all of the underhanded means that they have used to bribe their way into their House and Senate seats, as well as any other scandals in which they might be involved. The American people would suddenly learn that the system is far more hopelessly corrupt than they ever imagined. Tu quoque may be a logical fallacy, but it has tremendous moral and emotional weight. If Trump went down, he could take many members of Congress with him when the 2018 midterm elections come.

Though everyone in the establishment would consider these events to be unthinkably dangerous, for libertarians this chain of events would be nothing short of glorious. Though it might endanger Americans in the short term to have such a government failure, it would provide an excellent opportunity for market actors to step in and provide more effective services. The loss of faith in democracy would allow for more libertarian forms of governance to be considered with less public hostility.

Conclusion

Regardless of the actual facts of the case, a conspiracy between the Trump campaign and the Russian government would be beneficial to Americans on multiple counts. The aftermath of such a revelation is impossible to predict, but no one could reasonably conclude that more statism is the answer. Thus, let us hope that the conspiracy theorists are correct. Such a sharp line of argumentation has gone completely unexplored by the establishment media, and one may speculate that this is due to a combination of their role as propagandists for the US government, a lack of insightful boldness, and the damning implications of such reasoning for the status quo political arrangement.

Authority, Anarchy, and Libertarian Social Order

On May 8, Fritz Pendleton published an article at Social Matter in which he argues that liberty is best preserved by authority rather than anarchy. He then proceeds to launch a misguided attack against libertarianism, all while misunderstanding authority, anarchy, liberty, and the nature of a libertarian social order. Let us examine what is wrong with Pendleton’s case on a point-by-point basis.

Stateless In Somalia

Pendleton begins with the old canard of Somalia-as-libertarian-utopia, though to his credit, he does not invite all libertarians to emigrate there. His description of the situation is essentially correct:

“It is a patchwork of warlords who have each parceled out a slice of mud to call his own, to rule according to his whims and fetishes. There are the Islamic warlords of al-Shabaab in the south, the government strongmen who collaborate with al-Shabaab when it suits them, the Somaliland separatists who want a separate nation in the north, and a thousand other men of questionable loyalties.”

Pendleton claims that “it takes a certain type of idiot to look at Somalia and see something promising,” then that “it requires an idiot of some erudition to see promise in a failed state like Somalia.” These are not equivalent. To look at Somalia and see something promising is to examine the entirety of their culture and find that there is at least one idea which could be adopted elsewhere to improve another society. To see promise in a failed state like Somalia is to believe that the situation in that particular place can be greatly improved in the foreseeable future. The former endeavor makes far more sense than the latter.

Though he is correct to say that “libertarians are interested in Somalia primarily because its central government is weak and has no effective presence throughout most of the nation,” his assertion that anarchy is not an effective solution to much of anything is confused. An absence of rulers is not meant to be a solution to anything in and of itself; its role in libertarian theory is to remove the statist intervention in the market economy that inhibits and/or prevents individuals from working together to find effective solutions to problems. Pendleton’s passing mention of human biodiversity is also misplaced, as the best means of analyzing anarchy in Somalia is to compare it to statism in Somalia, not to anarchy elsewhere or statism elsewhere. We are thus considering the same thede under different conditions rather than different thedes under the same conditions. His claim that “whatever the merits of decentralization in theory, in practice it mostly involves being subject to the whims of the local warlord and his cadre” is particular to the current cases of failed states. There is good reason to believe that a controlled demolition of a state apparatus by people who wish to impose a libertarian social order would not be like this because the people would have the will and means to disallow it. Even so, a nation-state government is essentially a warlord writ large. Localizing this evil and reducing its strength makes it easier to bribe, escape, or overthrow, which is a definite improvement.

Pendleton claims that a libertarian must search hard to find supporting evidence in Somalia, but the evidence is clear. Before Mohamed Siad Barre’s regime fell in 1991, the annual birth rate was 0.46 percent, the infant mortality rate was 11.6 percent, the life expectancy was 46 years, the annual death rate was 0.19 percent, the GDP per capita was $210, the adult literacy rate was 24 percent, and 35 percent of the people had access to safe water. The most recent measurements are that the annual birth rate is 0.40 percent (2016), the infant mortality rate is 9.66 percent (2016), the life expectancy is 52.4 years (2016), the annual death rate is 0.133 percent (2016), the GDP per capita is $400 (2014), the adult literacy rate is 38 percent (2011), and 45 percent of the people have access to safe water (2016). The telecommunications and money transfer industries have also improved to offer some of the best service in Africa.

It is easy to argue, as Pendleton does, that these improvements are negligible from his relatively cushy first-world environs, where such improvements on either a real or a percentage basis are barely noticeable. But in the third-world hellhole that is Somalia, such improvements can be the difference between life and death, not to mention the difference between having some basic quality of life or not having it. His claim that anarchy is not much different than communism is asserted without evidence and may therefore be dismissed without evidence.

The Case of Tudor England

Pendleton seeks to contrast the anarchy of Somalia with the historical Tudor monarchy of England. His contention that giving people more freedoms is not a prerequisite for a well-run society is technically correct but beside the point. The fact is that a society need not be ‘run’ at all in the sense of top-down management by a ruling class. People can (and in the absence of interference, do) form voluntary associations to solve problems without being ordered around at gunpoint by government minions. That people have flourished in times of gentle oppression, a strange phrase indeed, says more about human resilience than it says about the merits of oppression.

He continues,

“Henry VII and VIII set in motion a series of clever reforms that reached a climax during the rule of Elizabeth I. England had finally found its stride. It must be noted that Elizabethan England, despite its relative freedom, was not keen on handing out legal recognition of liberties to its people. The era was one of unapologetic centralization. The crown’s subjects were given no guarantees of free speech at all; in fact, the censors worked hard and fast to clamp down on anything they perceived as dissent. Freedom of speech was still very far over the political horizon. And yet, despite the book burnings, despite the cages, despite the severed heads around London Tower, the Elizabethan era gave us Shakespeare, Marlowe, Spencer, Jonson, and Bacon. Imagine an era that gave the English language so much genius and not one assurance of free speech to go with it!”

One must ask whether this occurred because of oppression or in spite of it. It is possible, of course, that the great writers of the day produced such memorable works because the adversity of censorship forced them to innovate novel speech patterns in order to evade the censors. In an earlier age, Chaucer gained a lasting place in the canon of English literature for doing just that. But one must wonder, what potential was wasted? What great works were never penned because their would-be-authors feared for their lives? Perhaps the literary marvels of Elizabethan England were due to its relative freedom rather than its censorship, and more liberty would have been better.

Pendleton asks us to consider that the Elizabethan era was when the British Empire began in earnest, but does not explain how this happened. Spain, Portugal, and even France were ahead of England in colonizing the New World and expanding trade routes in the latter half of the 16th century. It was not until Elizabeth died and James VI and I became King of Scotland and England that the English shifted their attention from attacking the colonies of other nations to the business of establishing their own overseas colonies. The burdensome regulations of the day may disappoint a contemporary libertarian, but the English trade policies were about as good as there were at the time.

Chile and Singapore

Next, Pendleton presents Augusto Pinochet’s Chile and Lee Kuan Yew’s Singapore as examples of anti-libertarian success stories. Both pursued economic liberty while restricting social and political liberty; as Pendleton says of the left-libertarians, “a libertarian would rather choke on his bow-tie than defend [their political policies].” Though left-libertarians tend to recoil at such measures, a reactionary understanding of libertarianism provides quite a different view. The libertarian reactionary understands that the desired goal of a libertarian social order can only be achieved by physically removing the state from power. Doing this, however, requires a critical mass of the population to use self-defense against the current system. If such a critical mass is absent, then those who seek liberty must turn to other methods. Those libertarians who are capable of checking their autism and doing what is necessary within context may come to support a Pinochet- or Yew-type for the purpose of restoring a balance of political terror. The idea is for libertarians to use a reactionary authoritarian approach in order to suppress leftists and reverse the damage they have done, overthrow the regime once the left is defeated, then maintain the power vacuum by continuous application of defensive force. Furthermore, a libertarian social order will not necessarily offer a great deal of social and political liberty, especially to those who do not hold allodial title over private property and/or disagree with anarcho-capitalism. As Hans-Hermann Hoppe explains,

“As soon as mature members of society habitually express acceptance or even advocate egalitarian sentiments, whether in the form of democracy (majority rule) or of communism, it becomes essential that other members, and in particular the natural social elites, be prepared to act decisively and, in the case of continued nonconformity, exclude and ultimately expel these members from society. In a covenant concluded among proprietor and community tenants for the purpose of protecting their private property, no such thing as a right to free (unlimited) speech exists, not even to unlimited speech on one’s own tenant-property. One may say innumerable things and promote almost any idea under the sun, but naturally no one is permitted to advocate ideas contrary to the very purpose of the covenant of preserving and protecting private property, such as democracy and communism. There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society.”[1]

This is quite similar to the standard of no voice and free exit advocated by Nick Land and some other prominent neoreactionaries. The only real difference is that the libertarian reactionary is especially concerned with making the sovereign units as small as possible. It is worth noting that both proposals blend anarchy with authority, in that there is an irreducible anarchy between sovereigns who have authority within their private properties.

Pendleton wonders how Singapore would have preserved liberty in the midst of conflicts between the various ethnic groups present there without Yew’s rule, and how the various religious groups could have been kept from fighting in England without Elizabeth I’s despotism. The possible answers to such questions are the same in each case. First, groups may hire neutral third parties to resolve disputes. Second, the groups may voluntarily segregate themselves so as to avoid contact with each other. Third, some groups that cannot get along with others may have a mass exodus. Fourth, a troublemaking group may be forcibly exiled by all of the other groups. Fifth, each side may be armed to such an extent as to create peace through mutually assured destruction. Sixth, the groups may simply choose to fight it out, as some hostilities reach a point of no return. In the first five cases, the preservation of liberty is maximized. The sixth case is far more troublesome, but such quarrels can be formalized and separated so as not to catch innocent bystanders in the crossfire. A system of dueling has filled this role in many historical societies. There are thus many options other than authoritarianism for preserving liberty; the only question is whether people care to utilize them.

Libertarianism and Reaction

Pendleton writes,

“The reactionary and libertarian both agree that small governments are good. But the reactionary feels that small governments are made not by relinquishing authority, as the libertarian would do, but by strengthening it. Liberty is too precious to be entrusted to anarchy in the same way that diamonds are too precious to be entrusted to one’s doorstep.”

Here, he misunderstands what a libertarian would do, at least those who are not leftists. A libertarian reactionary seeks not to relinquish authority, but to make it as absolute as possible in the hands of the private property owner within that person’s private property. And contrary to Pendleton, liberty requires anarchy because the freedom to do as one wishes as long as one respects the right of other people to do likewise and commits no aggression against them is violated by a state apparatus by definition. If a state is present, it will fund its activities through taxation and civil asset forfeiture, take private property through eminent domain, and restrict the use of property through intellectual monopoly, zoning, and environmental regulations. Its officials and agents will choose the nature of the law and the enforcement thereof, meaning that they rule the law and not vice versa. Its enforcers will initiate the use of violence against people who are known to disagree with government statutes and acts upon their disagreements, thus presenting a constant threat to peace. Its agents are allowed to do that which is considered criminal for anyone else to do, and the system is set up to keep them from being held to account. It will force people to associate with it regardless of whether they want to use or pay for its services. Therefore, it is clear that liberty cannot be protected by state authority; such a threatening protector is a contradiction of terms.

Final Arbitration

Next, Pendleton presents a case to make the ‘final arbiter of disputes’ criticism of libertarianism:

“Suppose we have one of those highly attenuated legal battles where the details of the case are complicated and emotionally charged. Let us suppose that a drunk driver crashed into a tree and his passenger was killed when she flew through the windshield; she had not worn her seat belt. The grieving husband of the passenger demanded compensation from the driver to help take care of his kids in place of his now deceased wife. Daycare is expensive these days, after all. The driver apologized profusely but pointed out that the passenger was just as responsible for her death because she was not buckled into her seat. The husband countered by saying that the belt would not have been an issue if the driver had not been drunk and crashed into a tree.

Since these men live in a libertarian utopia, there is no superseding legal authority to arbitrate: a third-party arbitration company will have to be hired. Now let’s suppose that one of these arbitration companies is owned by a brother-in-law of the driver, and not surprisingly, the driver only agrees to hire that company. The husband refuses. The driver in turn refuses to pay any compensation whatsoever. The furious husband now threatens to kill the wife of the driver to make him understand what it feels like to lose a loved one.

How can any libertarian who sings the praises of anarchy not see how this situation will only continue to escalate? How can there be any justice for the woman who lost her life in the original crash and what about the violations of liberty that will ensue when this conflict devolves into a family feud? If there had been one authority to take control of this dispute the liberties of everyone involved would have been much more safely guarded. In a world where emotion forms the greater part of human action, liberty requires authority.”

This situation may be resolved in advance through contracts. The owners of the road set the conditions for operating vehicles on their private property, with violators subject to physical removal not unlike the traffic stops, arrests, and impounding of vehicles today. They may demand that everyone using their roads have arbitration services which do not involve such conflicts of interest, and contrary to some myopic analysis to the contrary, are almost certain to frown upon drunk drivers. They might even have all cars on their roads driven by robots, which nips this scenario in the bud. Failing this, a person who has committed an offense and refuses to make restitution can be ostracized from society until compliance is gained. Furthermore, such a person may rightly be forced to make restitution because an unrepentant aggressor is not subject to the non-aggression principle through his continuing violation of it. The driver’s wife, however, is an innocent bystander unless she was responsible for getting him drunk and/or making him drive while intoxicated. Threatening her absent these conditions makes the widower an aggressor to be subdued. As a libertarian society would have several private defense agencies available to handle such applications of defensive force and almost everyone would have a protection policy with one of these companies, an escalation is quite unlikely. Even if this kind of situation does escalate, it pales in comparison to the carnage wrought by the one authority that Pendleton defends. States were responsible for 203 million democides and war deaths in the 20th century alone. This is hardly a price worth paying to stifle a few family feuds.

More generally, a final arbiter of disputes cannot exist because no person or institution can absolutely guarantee that any issue will be resolved forever with no possibility of review. The way that disputes ultimately end in any social order is that some party finds the dispute to no longer be worth continuing. Everything else, whether statist courts and legislatures or anarchic arbitration services and private defense agencies, is simply window dressing on this immutable truth.

Of Rules and Rulers

Pendleton writes,

“A libertarian who is honest with himself has to ask why even jungle tribes have a chief and why high schools have hall-monitors. Human beings require authority, and if authority is to mean anything at all, it requires the power of compulsion; liberty cannot last long in a nation that thinks of its authority as a polite suggestion.”

It is important to understand the true meaning of anarchy. Anarchy comes from Greek ἀναρχία, which is typically translated as ‘without rulers.’ More precisely, it means ‘without beginning to take the lead.’ This is not the same as ‘without rules’ or ‘without leaders.’ Having a ruler means that there are no rules because the ruler has authority over the rules and not vice versa. That the lead is not taken does not mean that no one can lead because leadership can be freely given. This is well-understood in every aspect of life other than politics. In the words of Mikhail Bakunin,

“Does it follow that I reject all authority? Far from me such a thought. In the matter of boots, I refer to the authority of the bootmaker; concerning houses, canals, or railroads, I consult that of the architect or engineer. …But I allow neither the bootmaker nor the architect nor the savant to impose his authority upon me. I listen to them freely and with all the respect merited by their intelligence, their character, their knowledge, reserving always my incontestable right of criticism and censure. I do not content myself with consulting authority in any special branch; I consult several; I compare their opinions, and choose that which seems to me the soundest. But I recognize no infallible authority, even in special questions; consequently, whatever respect I may have for the honesty and the sincerity of such or such an individual, I have no absolute faith in any person. Such a faith would be fatal to my reason, to my liberty, and even to the success of my undertakings; it would immediately transform me into a stupid slave, an instrument of the will and interests of others.”[2]

Additionally, compulsion and initiatory force are not equivalent. This is because compulsion may take the form of defensive force or of less violent means such as shaming and ostracism. Thus, if human beings require authority (and Pendleton does not prove that they do), a libertarian social order is quite capable of compelling people through contract law, ostracism, and private military forces.

Mischaracterization

Pendleton laments that not many libertarians will be swayed by his arguments, but does not understand why. It is not the case that libertarians are “far too busy sketching intricate political systems on paper to be bothered with considerations of human psychology.” Libertarianism, properly understood, is anti-political; its primary interest in political systems is in finding ways to destroy them without causing unnecessary damage to the social fabric. As for considerations of human psychology, they should lead one to reject the state as an enabler and multiplier of evil in the world. Ultimately, libertarians are not swayed by his arguments because they are easily refuted, as shown both above and below.

The Definition of Liberty

Pendleton writes,

“Liberty, as we now know it, is a set of unquestionable boundaries that are owed to all citizens: the right to peaceable assembly, the right to free speech, the right to a free press, and so on. The problem with these ‘rights’ is that they are very enticing ideas that are very murky in their specifics. They exist in the minds of Americans as a hazy bundle of entitlements, as things that they are owed, rather than things that they must earn.

The greatest problem with this notion of liberty as an entitlement is that once citizens start declaring rights as ‘universal’ and ‘God-given’ there is no mechanism to stop them from continually inventing new ones. The ‘right to privacy’ or the ‘right to universal healthcare’ are muddled ideas that our founding fathers never anticipated. Jefferson and Madison almost certainly would not have approved of them, but they are ideas that have as much legitimacy as America’s own Bill of Rights: if Madison can conjure up new rights with a few quill strokes there is likewise nothing to stop Supreme Court justices from doing the same thing. And so the list of entitlements owed to Americans steadily grows longer as its list of responsibilities dwindles.”

He correctly criticizes the contemporary understanding of liberty in liberal democracies. As I have explained elsewhere, these rights belong to private property owners within the spaces that they own. No one has a right to assemble, speak, print, and so on within private property if the owner disagrees with such activities. Those who would do so are trespassing and thus subject to physical removal. The current problem is that the state has greatly interfered with private property. This is a problem of the commons, and the only solution is to eliminate the commons and return it to private ownership.

From here, as Pendleton realizes, it only gets worse. When people fail to connect rights to logic and ownership of property, or more simply, to thought and action, they confuse negative rights with so-called “positive rights.” These positive rights cannot be valid because their provision violates the negative rights of other people. For instance, a right to healthcare implies that someone must be forced to provide healthcare, even if it against the provider’s wishes to serve that person.

But though he correctly identifies the problem, Pendleton proposes an incorrect solution. He seeks to restore the ancient Roman ideal of liberty rather than to correct the errors in the practice of modern liberty. The Romans viewed liberty in a collective sense, as imposing responsibilities to the state in eschange for individual rights. In truth, liberty is neither a list of entitlements nor a reward for serving society or the state; it is the result of gaining and defending private property. With this understanding, it is not ironic at all that libertarians would condemn a system which subordinates the individual to a collective as fascism (or more appropriately, as communism).

Rationalism and Empiricism

Pendleton claims that the Roman notion of liberty has the example of Singapore while the libertarian has no compelling models; only fantasies and Somalia. Implicit in this claim is a sort of historical determinism that demonstrates a lack of courage and imagination to look beyond what has been and see what is possible but as yet unrealized. As explained above, Somalia has shown improvement without a state. And fortunately, libertarians have more than fantasies; we have a priori theory. In the words of Hoppe, “A priori theory trumps and corrects experience (and logic overrules observation), and not vice-versa.”[3] This is because one may use rationalism without using empiricism, but one cannot use empiricism without using rationalism. That rationalism is independent and empiricism is dependent establishes a clear hierarchy between the two ways of knowing. Of course, this will not convince a strong empiricist of the historical determinist variety, but this has no bearing upon the truth value of the argument.

That being said, it is worth considering why there are no empirical examples of a stateless propertarian society in recent times. The obvious answer is that states initiate violence to sustain their operations, and libertarians have yet to suppress this aggression with enough defensive force to stop it. The other, less obvious explanation is that those who govern in statist systems know at one level or another that their institutions are unnecessary for the functioning of society, but that most people are more empirical than rational in their thinking. It is for this reason that they cannot allow a working example of a stateless society to be created, as this would permanently turn the masses against the state. They thus use force not only to maintain their power, but to ensure that most people never consider alternatives which do not include them.

Conclusion

Pendleton closes by contemplating the issues on the horizon for America, from racial tensions to Islamic terrorists, though he says nothing of the various economic issues. However, the “furious, explosive derailment” he fears is not only unavoidable, but necessary. The current system cannot be fixed; it must end in either a controlled demolition or a chaotic collapse. In any event, the answers are to be found in the restoration and enforcement of private property rights and freedom of association, with physical removal for those who challenge these norms. It is best to work toward emerging from this chaos looking neither like Singapore nor like Somalia, but as something completely novel in time memorial: a functional stateless society of covenant communities.

References:

  1. Hans-Hermann Hoppe (2001). Democracy: The God That Failed. Transaction Publishers. p. 218
  2. Bakunin, Mikhail (1871, 1882). God and the State. Mother Earth Publishing Association. Ch. 2
  3. Hoppe, p. xvi.

Book Review: Islamic Exceptionalism

Islamic Exceptionalism is a book about the relationship between Islam and the modern nation-state by American author Shadi Hamid. The book explores the role that Islam has played in the development of the Middle East, as well as the currently ongoing conflicts there. The book is divided into eight chapters, each focusing on a different Muslim country or other aspect of the situation.

The first chapter begins with the overthrow of Hosni Mubarak in February 2011, the 2013 coup against Mohamed Morsi two years later, and the massacre of Muslim Brotherhood members by the Egyptian military. These are contrasted with the activities of the Islamic State. Hamid spends much of the chapter laying out the subject matter and structure of the rest of the book, which include the role of Islam in political affairs, the unique history and teachings of Islam, and the effects that this history and these teachings are likely to have. Hamid’s explorations of these questions leads him to question the mainstream liberal narrative of Whig historiography, democratic supremacy, and progressive determinism, though he never quite manages to reject this narrative. He contrasts Muslim countries which have experienced great political unrest, such as Egypt, Tunisia, and Syria, with those that have not, such as Iran, Indonesia, and Malaysia. He then explains the differences between contemporary Muslim countries and European countries in the 1950s, suggesting that what worked in Europe will not work in the Middle East. Hamid ends the chapter by contemplating the compatibility of Islam and democracy.

Hamid goes into a history lesson of Islam in the second chapter, as the present cannot be understood without knowledge of the past. The idea of glorious achievements threatened by internecine killings permeates Islamic history from the beginning, and this coupling continues to shape the Middle East today. The decline and fall of the Ottoman caliphate has left a longing for the return of a caliphate, and ISIS has been more than happy to try to meet this demand. He compares the founding of Islam to the founding of Christianity, as well as sharia law to halakhic law. The relative flexibility and adaptability of Islam compared to other religions is explored in order to explain the simultaneous perceptions of Islam as both modern and medieval. The chapter ends with a discussion of the Christian Reformation, which segues into the next chapter.

The Islamic Reformation is the subject of the third chapter. Contrary to popular belief, Hamid shows that such a reformation has already occurred, as Islam adapted to modernity in a way that Christianity failed to do. The line of thinkers that led to Hassan al-Banna, the founder of the Muslim Brotherhood, is discussed alongside the decline and fall of the Ottoman Empire and the rise of Salafism. That Islamism only makes sense in a modern context is an important point that Hamid makes here, which is an example of the larger truth that a term which describes everything really describes nothing. The founding and principles of the Muslim Brotherhood are addressed next, with emphasis on the differences between Banna’s view of Islam and the less observant practices of Muslims in prior centuries. The second half of the chapter returns to the 2013 massacre in Egypt, then goes back to Banna’s time and moves forward through the Brotherhood’s history of being suppressed under Gamal Abdel Nasser and Anwar el-Sadat.

The fourth and longest chapter continues the story of the Muslim Brotherhood, detailing how its members have responded to the 2013 massacre. Here, Hamid turns to interviews with Brotherhood members, many of whom are now in exile to escape imprisonment by the regime of Abdel Fattah el-Sisi. The massacre changed the minds of many in the Brotherhood, whose stance on political change had always been to play the long game and make gradual gains over decades. While the leadership was largely unmoved by this, the younger rank-and-file became radicalized. The Brotherhood’s shift to nonviolence in the 1970s has always been doubted by some as merely a tactical move, and this shift may well be undone. Hamid presents the differing views on the nature of the state and political change of the Muslim Brotherhood versus the Islamic State, and most of those interviewed were not willing to support ISIS. The youths Hamid interviews have come to understand the need to break the Westphalian order, but Hamid cannot seem to grasp this idea.

The fifth chapter considers the case of Turkey, in which Recep Tayyip Erdogan managed to take and solidify power after several cases of Islamist parties being banned. Here, the modern history of Turkey is covered, including the dissolution of the Ottoman caliphate, the role of Ataturk in transforming Turkey into a modern nation-state, and the enforced secularism of that project which alienated Islamists. Once more, the localist nature of Islamic law came into conflict with the nationalism and globalism of the state. The role and path of Erdogan in changing the secular nature of the Turkish state is discussed. No mention of the failed coup attempt against Erdogan is made because it occurred after the time of publishing, and the significant changes since then somewhat date this chapter.

The example of Ennahda in Tunisia is the focus of the sixth chapter, and it presents a much different outcome for Islamists there. Seeing the bloodshed in Egypt, Islamists in Tunisia conceded their Islamism and allowed more secular interests to govern in their stead in order to keep peace and order. Hamid portrays Ennahda as being in an impossible predicament; if they moderate, they will lose their base to a more radical party, but they can never moderate enough to convince secularists to accept them.

The stark alternative presented by ISIS to the whole debate over Islam, democracy, and the modern nation-state is the subject of chapter seven. Hamid shares an interview with a man whose son left Tunisia to join Jabhat al-Nusra in Syria and then ISIS, eventually dying in battle there. The discussion of Tunisia continues in this context because a disproportionate number of ISIS militants come from Tunisia. Hamid correctly recognizes ISIS as a state because it has a monopoly on initiatory force within a geographical area and provides the common functions of a state, even if the rest of the world refuses to accept this reality. He shares another important truth here: moderates tend to lose in civil wars and revolutions because they lack both the fervor and resolve to do what the extremists on all sides will do. Though Hamid predicts the eventual downfall of ISIS, it may take some time and the motivations that led to its formation can lead to other such efforts in the future.

The book concludes by summarizing the previous chapters. The last chapter begins with the attack on Charlie Hebdo‘s offices and the reaction to them, which was somewhat muted among hardline Muslims. Hamid discusses the rise of nativist sentiment around the world and the role that it plays for those who would restore older forms of governance in the Middle East. He presents another important insight: that there are no such things as universal values, at least in practice. The contradictions of imposing a democratic process by non-democratic means are explored, but in some cases Hamid finds restrictions on pure democracy to be a necessity to prevent collapse.

Hamid’s insights into the inner workings of the region are not to be missed. But the Western liberal democratic biases of the author are inescapable. Hamid is unable to process the possibility that democracy is inferior to the older pre-Westphalian order, especially for the Muslim world. This is especially irksome, given the amount of evidence that he himself finds for this possibility. That being said, Islamic Exceptionalism is a highly informative book, especially for those with only a passing knowledge of Islamic history or current events in the Middle East.

Rating: 4/5

Fourteen Observations on Events in Syria

On April 4, a chemical weapon attack occurred in Khan Shiekhoun, Idlib, Syria, killing at least 69 people. Western governments and media outlets have almost universally blamed the Bashar al-Assad regime for the attacks, while Russia and the Syrian government have blamed Syrian rebel forces. US Ambassador to the United Nations Nikki Haley indicated on April 5 that the US may take action against Assad in response. On April 6, President Donald Trump ordered a strike of 59 Tomahawk cruise missiles against Shayrat Military Airport in Homs province, the place that US intelligence alleges as the point of origin for the chemical weapon attack. Fourteen observations on these events follow.

1. How people die is apparently more important than how many die. A person who dies convulsing and gasping for air following a sarin gas attack is just as dead as a person who is killed with bullets, conventional bombs, fire, or any other weapon of war. But the former looks more horrifying and thus causes more of an emotional response in empathic people than videos of bombed-out buildings or machine-gunned corpses.

2. The lügenpresse is fully aware of this tendency. This is why both sensationalist journalists and propagandists for Western military intervention would rather show videos of this sort than videos of more conventional warfare and its results. This allows them to short-circuit the reason centers of the American people and appeal to their moral outrage in a selective fashion, as Western countries tend to restrict their chemical weapons usage to less lethal levels, such as using tear gas against protesters.

3. It makes no sense for Assad to have used chemical weapons and every bit of sense for the rebels. In a speech on the night of April 6, Trump claimed that “[t]here can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the U.N. Security Council.” Military intelligence reports seem to confirm this. But this may be disputed on the grounds that both the United States government and the intelligence community have a long history of both incompetence and of lying to the American people. Furthermore, Assad was already holding his ground and gaining territory from the rebels, including the capture of the long-besieged city of Aleppo in December 2016. The use of chemical weapons by Assad’s forces could only invite intervention against their cause, and the rebels must know this, giving them the incentive to perpetrate a false flag operation.

Of course, this does not mean that Assad or one of his generals is not ultimately responsible, as assuming rational actors would be a fatal flaw in any analysis of events in the Middle East. But the incentives run counter to that scenario and favor a rebel use of chemical weapons.

4. There is a stronger national security interest in not intervening. In his speech, Trump said, “It is in this vital, national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” This is debatable, but even if true, larger concerns loom. On April 7, Vladimir Safronkov, Russia’s deputy UN envoy, said to the UN Security Council, “We strongly condemn the illegitimate actions by the US. The consequences of this for regional and international stability could be extremely serious.” Russian Prime Minister Dmitry Medvedev charged that the US strikes were one step away from clashing with Russia’s military. Russia’s Defense Ministry responded to the attack by closing a communications line used to avoid accidental hostilities between American and Russian forces when US warplanes attack ISIS forces that are in close proximity to Russian forces. A Russian missile frigate was deployed to the area from which the two US destroyers fired missiles into Syria. None of this is beneficial for the fight against Islamic terrorism, and it makes a shooting war between nuclear-armed states far more likely.

5. Attacking Assad helps the Islamic State. Following the cruise missile strike against Shayrat, ISIS forces in Homs launched an offensive, storming the Syrian Arab Army checkpoints near Al-Furqalas. The destruction of Shayrat will temporarily prevent Assad’s forces from providing air support in the area, which could lead to ISIS gains there as well as on the Palmyra and Deir ez-Zor fronts. This is to be expected; a black swan event that negatively affects one side in a war necessarily has a positive effect on that side’s enemies, and ISIS has enough sense to seize upon this opportunity.

6. Actions like this make it difficult to take the War on Terrorism seriously. Attacking people who are at war with a terrorist state is counterproductive to winning the War on Terrorism. In fact, it raises concerns that defeating terrorism is not the true purpose of the War on Terrorism. Note that if the War on Terrorism were won, then the rationale for police statism and massive military spending would vanish. If the War on Terrorism were lost, then the state would fail at the one job that it is supposedly solely capable of performing, namely keeping its people safe. The ideology of Islamic terrorists disallows a draw, so the only other option is an endless war. An endless war allows politicians to continually expand state power and siphon money into the hands of the defense contractors who fund their campaigns. The idea that politicians care more about this than about the human lives lost on both sides of the conflict is the most cynical explanation, so it is the most likely to be correct.

7. The damage from the cruise missile strike can be easily repaired. Repairing a runway is a simple matter of bulldozing the affected areas and repaving it, which can be done in a few days. The buildings must be demolished and rebuilt, which could be done in a matter of weeks. Replacing the 20+ aircraft that were destroyed is the hard part, but Russia can solve that problem for Assad. In short, this one strike will be quite ineffective in the long term.

8. Trump’s moral outrage is inconsistent at best. The very strike that was supposed to stop civilian deaths actually contributed to them. Errant missiles missed the air base, hitting nearby villages. Five adults and four children were killed in Al-Hamrat, and another seven people were wounded in Al-Manzul. A few weeks earlier, an air strike aimed at ISIS in Mosul, Iraq killed 200 civilians. It makes no sense for Trump to be outraged about chemical weapons use in Syria but not about these atrocities carried out by the US military under his own orders.

9. Given the previous six observations, the strike makes more sense as a cynical political move than as an effort to help the Syrian people or punish Assad. As tensions escalate with North Korea, a targeted strike against Syria makes the threat of a targeted strike against North Korea more credible. This may alter the calculus of Kim Jong-un as well as the Chinese government, leading North Korea to be less aggressive and China to be more cooperative. At home, Trump faces continued allegations of links between his campaign and Russian government officials in addition to difficulties in accomplishing his legislative agenda. Acting against Syria while Russia is assisting them helps to rebut such allegations and give the appearance that he is not completely hamstrung by Congress. Trump may calculate that the number of isolationist supporters he would lose through such an act would be outweighed by the number of neoconservative and neoliberal war hawks he would win over. This combination of effects makes more sense as a motive than any humanitarian concerns.

As for future action against Syria, removing Assad would further destabilize the region and create a power vacuum which would be filled by jihadists. This would distract Trump from the aspects of his agenda that run counter to the globalist deep state. Backing down and patching over relations with Russia in a timely manner would bolster the leftist narrative of Trump as a Russian puppet. We may therefore expect more targeted strikes which leave Assad in power and do not really accomplish much.

10. Statecraft requires rational psychopathy. The unpleasant truth that no one wishes to acknowledge is that allowing third-world dictators to massacre their own citizens is the best thing we can do. As shocking as that may sound, there are only two alternatives, both of which have been tried and shown to be even worse. One alternative is to intervene decisively to help an oppressed people overthrow their ruler. This was tried in Iraq in 2003 and in Libya in 2011. The end result in both cases was sectarian violence that killed people at a faster rate than did the deposed dictators, and the same sorts of human rights abuses continued under new leadership. The other alternative is to intervene indecisively to keep a civil war raging. This was tried in Iraq and Syria in and after 2011. The end result has been the weakening of social order, the marginalization of moderate rebel groups, the growth of jihadist terror groups, and the ultimate transfer of arms to al-Qa’ida, Islamic State, and their affiliates.

The President of the United States, so long as there is going to be one, should be a person completely lacking in empathy. One should instead govern as a perfectly rational psychopath, thinking completely with the head and not at all with the heart, looking out for the interests of Americans and not for the interests of foreigners. One must be able to look at overseas atrocities and say, “This is not our problem. We are not the policemen of the world.”

11. This situation is the result of Western meddling. Syria was a colony of France from 1920 to 1946. At the beginning of this time, Mandatory Syria was divided into six states: Greater Lebanon (now Lebanon), Sanjak of Alexandretta (now part of Turkey), the State of Aleppo, the State of Damascus, the Alawite State, and the Jabal al-Druze State. This arrangement kept opposing factions in their own territories, but France had combined the latter four by the end of 1936. These factions fought for control, resulting in a large number of military coups and attempted coups from 1945 to 1970, ending only when Hafez al-Assad was able to rule strongly enough to suppress dissent. After his death in 2000, his son Bashar succeeded him. In the Arab Spring protests of 2011, Assad’s rule was challenged by various factions which sought to remove him from power, leading to the Syrian Civil War.

12. Syria must balkanize. If France had not tried to combine disparate peoples under one state and had instead left the four Syrian states separate, this bloody conflict could have been prevented. Bashar al-Assad, if he had come to power at all in this alternate timeline, would only be the ruler of a small part of western Syria. The rest of the country would have been ruled more locally and probably less oppressively by governments of their own people. This, rather than the removal of Assad followed by yet another wasteful failure of nation-building, should be the end goal of any intervention that might occur in Syria.

13. Trump has betrayed the raison d’être of his campaign. A major factor that caused people who normally do not vote for anyone to come out to vote for Trump was his “America First” rhetoric. Part of putting America first is to avoid unnecessary foreign entanglements by implementing a non-interventionist foreign policy. Many people supported Barack Obama in the hopes that he would do less damage overseas than George W. Bush. After being disappointed in Obama and seeing no difference in Mitt Romney, they gravitated toward Trump because his rhetoric was in stark contrast to that of establishment politicians from both major parties. Now he has also disappointed them, and hopefully they will come to realize that…

14. Peace can only be obtained by anti-political means. Peace is the status of being free from violence. A state is a group of people who exercise a monopoly on initiatory force in a certain geographical area. Initiatory force involves the use of violence. Thus, the very presence of a state is a guarantee of war, both abroad and against the domestic population at home. Therefore, the only possibility for peace is to have no state. The elimination of the state cannot be accomplished by political means, as political processes perpetuate the state by design. Thus, anti-political means are required.

A Case Against the Second Amendment

One of the most controversial parts of the United States Constitution is the Second Amendment, which reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Unlike the previous entries in this series, this will not be an argument against the substance of the Second Amendment. Rather, this will be a case against both the exact language of the Second Amendment, its efficacy, and the effect of having it explicitly codified in the United States Constitution.

Language

Let us begin with the words themselves and how their meaning has changed over the centuries. This is a common problem for those who view the Constitution as a dead document, as well as a common exploit for those who view the Constitution as a living document that they can interpret to mean whatever they wish it to mean. In the eighteenth century, ‘well-regulated’ simply meant ‘functioning properly.’ But with the growth of the administrative state, regulation has taken on the novel meaning of law without proper legislation. Likewise, the concept of a militia has also changed from that of all able-bodied males of military age to that of fringe anti-government extremists, as the federal government has usurped the role of the militia and handed it to the National Guard, which it may more easily command and control.

Next, there is the matter of security of a free state. In one sense, ‘free state’ is a contradiction of terms because the presence of a state is a guarantee of an absence of freedom. In that sense, those who seek liberty should not want the state to be secure, but rather to be continually imperiled by its own subjects. But in the language of the time, a free state was one which was sovereign over its geographical area rather than one which was subject to another, more powerful state. In this sense, the Second Amendment is correct to observe that a heavily armed populace is the most effective deterrent against foreign invasion.

Efficacy

The Second Amendment concludes by saying quite plainly now as then that ‘the right of the people to keep and bear Arms, shall not be infringed.’ This is an absolute standard, setting a zero tolerance for infringement of the right to keep and bear arms. But how effective has this been? Given that the National Firearms Act of 1934 imposes taxes on certain categories of arms, the Atomic Energy Act of 1946 forbids private nuclear weapons, the Gun Control Act of 1968 mandates licensing of arms dealers and manufacturers, the Firearm Owners Protection Act of 1986 outlaws private ownership of machine guns manufactured after that date, and numerous other federal, state, and local measures further restrict what kinds of weapons one may own, it is clear that the Second Amendment is mere ink on a dead animal hide rather than an authentic protection of essential liberty against the whims of legislators.

Another concern with the Second Amendment is the same as with any other part of the Constitution. The interpretation is decided by judges who are paid by the state in courts which are monopolized by the state. Thus, the Second 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 in the case of the Second Amendment means that there is a conflict of interest between defending the rights of the people to keep and bear arms and eliminating the danger to agents of the state that an armed population presents. This incentivizes judges to rule in favor of restrictions on arms, which constitutes a threat to individual liberty and tends toward infringement upon natural rights.

That being said, the case law on the Second Amendment is somewhat more favorable than the legislation. In United States v. Lopez (1995), the Supreme Court struck down the Gun-Free School Zones Act of 1990. In District of Columbia v. Heller (2008), the court ruled that there is an individual right to keep and bear arms rather than solely a collective right. The McDonald v. Chicago (2010) decision extended Heller to the state and local level, while Caetano v. Massachusetts (2016) extended these decisions to all forms of bearable arms. However, other decisions leave much to be desired. In United States v. Cruikshank (1875), the court ruled that the Second Amendment “was not intended to limit the powers of the State governments in respect to their own citizens” and “has no other effect than to restrict the powers of the national government.” (McDonald v. Chicago largely reversed this decision.) The Presser v. Illinois (1886) decision found that states may prohibit their citizens from forming private military organizations, which protects the coercive monopoly of the state over military defense. In United States v. Miller (1939), the court found that the Second Amendment does not protect particular classes of weapons if they are not ordinary military equipment and legislators cannot imagine how the weapon could contribute to the common defense, thus hindering innovation in defense. The Lewis v. United States (1980) decision says that felons may be prohibited from possessing arms, which is troublesome due to the wide variety of peaceful activities that are considered felonious in the United States. United States v. Rybar (1996) affirmed that Congress may regulate possession of homemade machine guns, thus infringing upon the private property rights of citizens. Overall, the courts occasionally defend the right to keep and bear arms, but are generally unreliable, especially for more powerful weaponry.

To Codify Or Not To Codify

To quote Frederic Bastiat, “The worst thing that can happen to a good cause is, not to be skillfully attacked, but to be ineptly defended.” Perhaps the most damaging effect of the Second Amendment is ideological in nature; it encourages people to rely upon it as an argument for their rights instead of making a stronger case from first principles. This helps to perpetuate the erroneous beliefs that rights come from the state or from the Constitution, as opposed to the correct view that rights are logical corollaries of the most fundamental right, that of self-ownership. As soon as one accepts such a statist basis for one’s rights, those rights are instantly jeopardized, for what the state giveth, the state may taketh away. The implication at that point is that there would be nothing wrong with gun confiscation if the Second Amendment could be repealed or reinterpreted by a future Supreme Court packed with progressive liberals, which is the goal of many leftists in the United States. In other countries which do not have counterparts to the Second Amendment, the laws concerning keeping and bearing arms are much more strict and invasive. But in many places with strict gun control measures, a large number of people still maintain firearms; they just do so illegally. Note that when a product is in demand and legal markets are forbidden from providing the supply to meet the demand, illegal markets will step in and make the banned goods easier to obtain than if the goods were legal but strictly regulated.

Conclusion

The Second Amendment is excellent in aspiration, but thoroughly insufficient in practice. Both the legislative and judicial branches have infringed upon the right to keep and bear arms, in flagrant violation of the promise made by the Framers. It is thus necessary to make a stronger case for private armament on both the theoretical and practical fronts. Theoretically, the case for keeping and bearing arms should be made from the first principles of self-ownership and private property rights. Practically, those who seek liberty must recognize and make use of the fact that one effectively owns that which one can take and defend. Put plainly, the right to keep and bear arms is not secured by some magical parchment or by agents of the state, but by the ability and willingness of the owners of those arms to use them in self-defense against anyone who would attempt to take them.

Song Lyrics: Stickman

This song is written in honor of Kyle Chapman, better known as Based Stickman. He bravely engaged communists in battle on March 4, 2017 in Berkeley, Calif. He was then arrested and charged with several felonies for defending protesters from street hooligans when the police would not. He has since been bailed out and has become a folk hero, appearing on several libertarian and nationalist podcasts. The song does not fit well with my vocal range, but I may attempt to record this anyway.

[To the tune of Spoonman by Soundgarden]

[Verse 1]

Antifa enters the fray
(Based Stickman will save the day)
Stickman
Policemen stand down and watch
(Save us from the Red assault)
Stickman

[Chorus]

Stickman, shield and stick are in your hands
Help us, we’re together with your plan
Help us
Help, oh

[Verse 2]

Volunteer to save our rights
(Based Stickman is our alt-knight)
Stickman
Cops try to put him away
(Their cells can’t keep him at bay)
Stickman

[Chorus]

Stickman, shield and stick are in your hands
Help us, we’re together with your plan
Help us
Help
Help us
Help us, yeah
Help, with your

[Bridge/Guitar Solo]

C’mon x12
With your shield
With your stick
With your
C’mon x4
Stick

[Interlude]

Good night to Antifa x8

[Chorus]

Stickman, shield and stick are in your hands
Help us, we’re together with your plan
Help us
Help, help us
With your, with your stick

[Outro]

Communists come ’round again
(More Stickmen will follow him)
Stickman