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.

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: The Essential Guide to Freelance Writing

The Essential Guide to Freelance Writing is a how-to manual on the subject by author and editor Zachary Petit. The book discusses all of the fundamentals of freelance writing that an aspiring writer needs to know.

Petit begins by discussing full-time versus part-time freelancing, as well as the different venues for which a freelancer can write. He offers the wise advice to avoid content mills and be open to writing for almost every other type of publication, which would have saved me a lot of trouble had this book been published four years earlier. The second chapter is about what to write and how to get ideas for articles. Again, the advice is sound: go out and find stories rather than expecting them to fall into your lap, use your knowledge and expertise from other disciplines, cover events local to you, express yourself, and never stop studying.

The next three chapters discuss the process of getting a freelance assignment. First, there is the matter of one’s online and offline presence, as well as adherence to stylebooks (which felt like it belonged in the fourth chapter rather than the third). Next, Petit takes the reader through the structure of a magazine and the writing opportunities (or lack thereof) presented by each part. The fourth chapter concludes with a brief discussion of what is necessary to write for major publications immediately. The fifth chapter explains in great detail how to (and how not to) query a publication in order to get a freelance assignment and briefly discusses the typical hierarchy of publishers, editors, assistants, and interns.

The sixth chapter covers everything that a novice writer needs to learn about interviewing people, from the pros and cons of in-person, phone, and email interviews to journalistic ethics to dealing with troublesome sources and celebrities (and both). In general, in-person interviews are better than phone interviews are better than email interviews, though one must take what one can get sometimes. The seventh chapter discusses almost every other type of writing available to a freelancer, such as front-of-the-book content, newspaper articles, feature articles, Q&As, and profile pieces. To Petit’s credit, the puff pieces and hit pieces which are far too common in formerly respectable publications are absent, as new writers should make an effort to be better than that.

The eighth chapter deals with a writer’s relationship with editors; how to treat them, how to think of them, and how to make sure that an article is ready to be seen by them. The most important advice here is to take no criticism personally, eliminate as many errors as possible on one’s own, double-check everything before submitting an article, and realize that editors can be busy people with tight schedules that limit their ability to respond promptly. The ninth chapter concerns the business side of being a freelancer, including proper payment, negotiating contracts, dealing with delinquent clients, avoiding shady clients, and navigating the unique tax situation of being an independent contractor. The book ends with a short conclusion of encouraging words and an appendix which mostly contains more information about writing queries.

Overall, I cannot recommend this book highly enough. Petit explains the ins and outs of freelancing as only a veteran of the business can, and it can save an aspiring freelance writer a lot of trouble from learning the slow and hard way.

Rating: 5/5

On Market Failure

The idea of market failure is a widely believed misconception which has found widespread use in statist propaganda for the purpose of justifying government intervention in the private sector. Though the term itself has only been in use since 1958, the concept can be traced back to Henry Sidgwick. It is used to describe a situation in which the allocation of goods and services is Pareto inefficient. This occurs when the rational self-interest of individuals is at odds with the optimal outcome for a collective. Such a situation is frequently blamed on conflicts of interest, factor immobility, information asymmetry, monopolies, negative externalities, public goods, and/or time-inconsistent preferences. Among these, monopolies, negative externalities, and public goods receive the most attention from mainstream economists.

But let us pause to consider what a market is. A market is a structure that allows buyers and sellers to exchange goods, services, and information. The participants in the market for a particular commodity consist of everyone who influences the price of that commodity. To say that a market has failed is to say that this process of assembling the information about a commodity which is reflected in its price and its change over time has failed. But the causes listed above are either inconsistent with a free market or unresolvable by interventions which bind the market. Let us explore this in detail.

Monopolies

While monopolies are frequently blamed for market failures, a monopoly in a particular market is typically the result of government intervention which has raised barriers to entry in that market. Through a vicious cycle of regulatory capture, larger businesses can put smaller competitors out of business by bribing politicians and regulators to favor the former and harm the latter. This continues until a market is effectively monopolized. Therefore, this type of monopoly is actually a government failure rather than a market failure.

Another type of monopoly can occur when there are natural barriers to entry, such as the need to build vast amounts of infrastructure in order to provide a good or service. This can give the first entrant into a market an insurmountable advantage. Consumers may then complain that this monopolist is abusing them rather than show gratitude that they are getting a service which was formerly nonexistent. But if the monopolist were really overcharging, then it would become feasible for another provider to either challenge the monopoly directly or provide an alternative service. This type of monopoly is actually a market signal that a particular good or service would be better provided by another means, and entrepreneurs should look for those means.

Third, a monopoly can arise in a free market if one business satisfies all consumers of a good or service to such an extent that no one cares to compete against them. This kind of monopoly is not a market failure, but an astonishing market success.

This leaves only the ‘public goods’ argument, which merits its own section.

Public Goods

Public goods and services are those whose consumption cannot be limited to paying customers. It is frequently argued that this produces waste in the form of unnecessary duplication and excess costs born by those who are not free riders. There is also the matter that non-excludable and rivalrous resources in a commons may be depleted without intervention. The latter can only be fully resolved by eliminating the commons, as restoring exclusive control to the resource is the only method of eliminating the perverse incentives created by a commons. The concerns over free riding and unnecessary duplication ignore incentives, prove too much, and commit the broken window fallacy.

If we wish to have a rational discussion, it is essential to define terms. A problem is an undesirable situation which can be remedied. This is because a situation which is not undesirable presents no problem to solve, and an undesirable situation which has no remedy is just a fact which must be tolerated. The free rider “problem” is a situation of the latter type, as it is impractical to make sure that everyone pays exactly what they should pay for the amount of public goods that they consume. That government monopolies destroy competition, and thus the market price system, makes the free rider “problem” impossible to solve, as the information needed to determine how much each person should pay for the amount of public goods that they consume is destroyed beyond repair.

If taken to its logical conclusion, the idea that no one should be able to consume more than or pay for less than their fair share of a public good means that the state should be eliminated, as the very presence of a state means that some people are consuming more than and paying for less than their fair share of the total wealth in the economy, as states are funded by coercive means which violate private property rights. Those who receive government welfare payments, bailouts, grants, or any other form of government funding are free riding upon the backs of taxpayers and anyone else who uses currency printed by a government’s central bank. The latter group of people are forced riders who are required to pay for public goods from which they receive insufficient benefit. Charity would also be unjustifiable if the concept of the free rider problem is taken to its logical conclusion, as those who receive charity are not paying the full cost for what they are using.

But suppose we ignore this as well. If we accept for the sake of argument that there are public goods and that no one should be able to consume more than or pay for less than their fair share of a public good, then the result will be a massive distortion of the economy, as both the state and private charity must go. While the demise of statism is nothing to lament, the absence of any form of private charity would lead to the very sort of Hobbesian war that statists fear and think that they are preventing. It must also be noted that the money for payments for public goods which are now being made was once being put toward another purpose. Whether that purpose was spending on other goods and services or investment (which is really just another form of spending), the diversion of spending away from these purposes and toward public goods will eliminate some other economic activities that were occurring.

Nearly all competitive production involves supposedly wasteful duplication, in that each provider must have the infrastructure necessary to produce that which is being provided. But if the duplication is truly wasteful, the market signals this by rendering the wasteful duplication unprofitable. Government intervention interferes with such signals, and government control over an industry completely eliminates them, leading to far worse government failures than any failure of the market.

Externalities

A problem related to public goods is the problem of externalities, in which costs or benefits affect a party who did not choose to incur those costs or benefits. When firms do not pay the full cost of production, each unit costs less to produce than it should, resulting in overproduction.

The most frequent examples given are pollution, traffic congestion, and overuse of natural resources, but all of these contain externalities because the market has been prevented by governments from internalizing the costs. Air and water pollution are externalities because government intervention on behalf of polluters has eliminated the common law system of private property rights with regard to pollution. Before the Industrial Revolution, pollution was correctly viewed as an act of aggression against people and their property. Those victimized could sue for damages and obtain injunctions against further pollution. Polluters and victims can also bargain to reach an optimal level of both production and pollution. Additionally, the victims would be justified in using violence in self-defense against polluters, though this is an historical rarity. But government monopolization of environmental regulation has prevented these market solutions from being implemented. Therefore, pollution is a government failure rather than a market failure.

Traffic congestion is another tragedy of the commons that causes externalities in the form of pollution, wasted fuel, and lost time. But this is another case in which governments have monopolized a good and produced it out of accordance with market demand. Without competing private firms to build different traffic systems in search of more efficient ones and without private property rights determining location and control over the transportation system, we are left with a non-excludable good that is incentivized toward overuse. Attempted solutions of congestion pricing, mass transit, and tolls mitigate some effects, but not to the extent that private service providers might implement such methods. Again, we have government failure at work.

A third example of externalities occurs with overuse of natural resources, such as fish and lumber. But once more, we see government intervention against private property mechanisms creating problems. Because state personnel in modern democracies do not personally benefit from maintaining the value of state-controlled property and work almost solely with the usufruct thereof, they are incentivized to engage in bribery and corruption. When states sell only the resource rights but not the territory itself, they get a renewable source of income. But firms that harvest renewable resources can abuse this system, stripping the resource bare then vanishing when it is time to replenish. These ‘fly-by-night’ lumber companies, fishers, and other such exploiters lead to the fast demise of resources which were harvested and preserved for centuries prior to state intervention. In short, government fails yet again.

Before moving on, a quick word about positive externalities is in order. This is another way of talking about the free rider problem, so the same criticisms discussed above apply. But we should also consider the benefits of free riders. Although some people will argue that free riders are responsible for higher costs, they are actually signaling that a good or service is overpriced. While degenerate freeloaders do exist, most free riders who are aware of their free riding are willing to pay for what they are receiving but believe that said goods or services are overpriced. In the state-enforced absence of another provider, they choose to “pirate” the public goods rather than pay the cost which they believe to be too expensive. If there are rational, knowledgeable people in charge of a public good that has many free riders, then they will respond by lowering the cost to convince more people to contribute, which can actually raise the total contribution.

The above result is rare, of course, as rational, knowledgeable people tend to be productive rather than become part of the state apparatus. The more useful role of free riders is to crash government programs which cannot be ended by normal political means. Most government programs help a few people by a large magnitude while harming a much larger number of people by a much smaller amount. This means that an irate and tireless minority will work to keep their sacred cow from being gored, while the majority is not being harmed enough to take action to end the harm. Thus, there is nothing more permanent than a temporary government program, and it is politically impossible to abolish entitlement and welfare programs. While the strategy of overloading such programs was first proposed by leftists who wished to replace them with far more expansive redistributions of wealth, it could also be used by libertarian-minded people who wish to replace such programs with nothing.

Other Culprits

The less-discussed causes of market failure are conflicts of interest, factor immobility, information asymmetry, and time-inconsistent preferences. This is mostly because government intervention is more widely known to either cause these problems or fail to solve them. Conflicts of interest typically occur when an agent has a self-interest which is at odds with the principal that the agent is supposed to serve. For example, a lawyer may advise his client to enter protracted legal proceedings not because it is best for the client, but because it will generate more income for the lawyer. A politician may vote for a law not because it is in the best interest of the people in her district, but because she was bribed by lobbyists who support the law. The only solution to a conflict of interest is to recuse oneself from the conflict, and government offers no answer, especially since it inherently operates on conflict of interest.

Factor immobility occurs when factors of production, such as land, capital, and labor, cannot easily move between one area of the economy and another. This sometimes occurs due to malinvestment caused by government distortions of the economy; in other cases, it results from technological advancement that puts an industry into obsolescence. In any event, government regulations frequently make it more difficult to change occupations and maneuver capital than it would be in a free market. Interventions to help workers in a declining field typically fall victim to the knowledge problem; it cannot accurately retrain workers or educate future workers because it cannot know what the economy will need by the time the retraining or education is complete.

Information asymmetry occurs when some parties in a transaction has more and/or better information than others. This creates a power disparity which is sometimes called a market failure in the worst cases. Common sub-types of information asymmetry include adverse selection and moral hazard. Adverse selection occurs when one party lacks information while negotiating a contract, while moral hazard involves a lack of information about performance or an inability to obtain appropriate relief for a breach of contract. These cases are made worse by government laws, as laws can lead to both adverse selection and moral hazard. For example, an insurance firm that is legally disallowed from discriminating against high-risk customers is itself put at a higher risk through no fault or will of its own, being unable to turn away those who cost the most to insure or cancel insurance policies for reckless behavior by the insured. Fortunately, there are market methods for resolving informational asymmetries, such as rating agencies.

Time-inconsistent preferences occur when people make decisions which are inconsistent with expected utility. For example, one might choose to have ten ounces of gold today rather than eleven ounces tomorrow. Time preferences are expressed economically through interest rates, in that interest rates are the premium placed upon having something now rather than waiting for it. Governments interfere with interest rates through central bank monetary policies, leading to alterations of time preference that can be inconsistent. This is still another example of government failure rather than market failure.

Resource Failure

Another possibility for market failure which is rarely discussed is that of resource failure. If an economy becomes dependent upon a certain non-renewable resource, that resource becomes scarce, and there is no viable alternative, the result can be devastating not only to markets, but to peoples’ lives as a whole. For example, if peak oil occurs and there is no alternative energy source available to meet the energy demands fulfilled by fossil fuels, a market failure will occur due to resource failure. Another historical example is the destruction of trees on Easter Island. Resource failure is generally not amenable to government policy, and may be exacerbated by it if subsidies alter the market to keep it from finding the best solution to a resource shortage.

Complainer Failure

The last type of failure is not a market failure at all, but a failure by a critic to understand the nature of the market. Consumer demand does not drive the economy; capital investment does. The over-reliance on gross domestic product (GDP) as a measure of economic output has fooled many people into believing otherwise, but GDP neglects intermediate production at the commodity, manufacturing, and wholesale stages of production. As such, consumer demand and spending are an effect of a healthy economy and not the cause.

With this in mind, the idea that the market has somehow failed when it does not produce everything that a particular person might want and deliver it exactly where they want it for a cost that the person finds agreeable is ridiculous. A person levying this criticism should be advised to check their hubris. If a certain good or service is not produced in a free market, it is because such production is not sufficiently worthwhile for anyone to make a living through doing so. The fact that everyone gets by without that good or service indicates that no failure has taken place. Those who desire that good or service so much should make an effort to provide it so that they can have it.

Standards

The entire idea of market failures is based on Pareto efficiency. But there is no reason why we must choose Pareto efficiency as the measure of market success. One could just as well define market efficiency as the degree to which it permits its participants to achieve their individual goals. (Note that these are equivalent if the conditions of the first welfare theorem are met.) Another possible standard is that of productive efficiency, which is optimized when no additional production can occur without increasing the amount of resources, time, and/or labor involved in production. An economy with maximum productive efficiency cannot produce more of one good without producing less of another good.

Conclusion

In every case, that which appears to be a market failure is actually a failure of government policy, natural resource management, or economic understanding. We may therefore reject the very idea of market failure as yet another form of statist propaganda.

Why JASTA Is Good

On September 28, Congress voted to override President Obama’s veto of a bill that allows relatives of the victims of the 9/11 terrorist attacks to sue Saudi Arabia for any role in the plot. The Senate defeated the veto by a 97-1 vote, then the House voted 348-77 to override the veto hours later. Therefore, the Justice Against Sponsors of Terrorism Act, or JASTA, is now a law. The bill passed both houses of Congress without objection earlier in 2016.

It was the first veto override of Obama’s presidency, and the first since 2008. Under Article I, Section 7, Clauses 2-3 of the United States Constitution, Congress may override a presidential veto by a two-thirds majority vote in both the House and the Senate.

Although no member of Congress spoke out against JASTA during the override procedure, Obama has argued that the law sets a dangerous precedent. It grants an exception to the legal principle of sovereign immunity, which could be a double-edged sword if other countries pass reciprocating legislation. This could expose American corporations, diplomats, politicians, and soldiers to lawsuits for their conduct overseas. This caused CIA Director John Brennan to warn that JASTA had “grave implications” for national security. Additionally, 28 senators signed a letter expressing reservations about the potential that JASTA will cause the United States to be sued in foreign courts “as a result of important military or intelligence activities.”

Why JASTA is Good

While the national security statists are scared of what Pandora’s box might have just been opened, this is excellent news for libertarians. This is because it chips away at the anti-libertarian idea of sovereign immunity, could give victims of American foreign policy a peaceful means of addressing their grievances, and could reveal clandestine activities to the American people about which they have a need to know.

Sovereign immunity is the legal doctrine by which the state can do no wrong and is immune from civil suit or criminal prosecution. It is the ultimate manifestation of the fact that government will not hold government accountable because it is against the rational self-interest of those who wield state power. With the ability to grant immunity to themselves, government agents can engage with impunity in activities which are criminalized for the commoner, and they do so on an enormous scale. A double standard of this sort could never be tolerated in a libertarian social order. In a free society, the standard would have to be that actions which are criminal for one person are criminal for another. Wearing a costume and claiming affiliation with a government would be meaningless. For example, just as taxation is robbery, slavery, receiving stolen monies, transporting stolen monies, and conspiracy if private citizens behave identically to government tax collectors, so would a libertarian private court prosecute tax collectors. JASTA and potential reciprocating legislation does not go nearly far enough in this sense, but it is a potential first step toward more justice for the crimes of government personnel.

Speaking of crimes of government personnel, the American military and the civilians who preside over it have committed a great number of them. Since the end of World War II, American foreign policy has caused between 20 million and 30 million deaths. Economic sanctions have contributed to this death toll, while impoverishing many people who have survived and generally failing to achieve their stated objectives. These multitudes of victims deserve justice. With sovereign immunity in place, there is no forum in which they may seek judicial relief. Making peaceful dispute resolution impossible makes violent dispute resolution inevitable, so some people wronged by the United States government decide to seek vengeance in the form of joining terrorist groups to attack innocent Americans in retaliation for their losses. While such acts cannot be morally defended, they are certainly understandable. Reciprocation to JASTA provides a pathway to a more peaceful system of addressing grievances caused by American foreign policy. Even the possibility that Americans may be sued for their wrongful deeds overseas would create a chilling effect against bellicosity that libertarians should welcome.

As such cases begin, the discovery process of these lawsuits could make public certain activities being done in the name of all Americans which are currently unknown to the American people. While the civil religion of democratic statism should not be taken at face value, most people do, so it makes sense in context to have an informed electorate. The people cannot judge various military and intelligence operations if they never find out about them. With JASTA and reciprocating legislation, the newly possible lawsuits filed by foreigners victimized by Americans could serve to educate the American people on the nature of what is being done in their names. Even libertarians who oppose democracy should favor this result, as one cannot protest wrongs of which one remains ignorant.

Objections

JASTA could result in lawsuits for vicarious liability against civilian contractors who provide armaments and other equipment to people who are directly involved in foreign atrocities. This is a feature, not a bug. Knowingly providing a violent criminal institution with the means to victimize the innocent should be treated not only as a civil wrong, but as criminal behavior. Lawsuits against such parties could result in a chilling effect against providing the state with the means to perform its pernicious deeds, which would benefit the American people by weakening the state and resulting in less motivation for retaliatory terrorism against innocent Americans.

Because there is a condition of anarchy between sovereigns, there is no higher court whose judgments are binding and enforced across national boundaries. This means that citizens can sue foreign nation-states as they see fit, but winning a judgment offers no guarantee of payment because the foreign nation-state can simply ignore the court’s decision. This is true, but it does not diminish the indirect consequences of JASTA, which are the real reasons to support it.

Should such cases not be summarily dismissed, there is the potential for many thousands of cases to bog down the court system. But this can create a demand to privatize courts, or at least give more business to private arbitrators of disputes. Should the cases remain in government courts, it will take up time and resources which could otherwise be used to cause more harm to innocent Americans.

Finally, there is the concern that allowing such lawsuits will damage foreign relations after such judgments are ignored. This is also a feature rather than a bug, as the possibility of damage to foreign relations for denying claims for wrongdoing in foreign policy provides an incentive for governments to avoid committing so many atrocities overseas. A world in which citizens may sue foreign governments for damages is thus likely to be a more peaceful world.

Conclusion

Although one would be correct to be skeptical of any legislation that passes by such a wide margin, the likely secondary results of JASTA are intriguing and the fears of it are overblown. From a philosophical libertarian perspective, JASTA is clearly a net benefit.

On the Use of Force Against the Commission on Presidential Debates

This is the second essay in a three-part series. In this essay, we will consider the philosophical case for using forceful means to protest the policies of the Commission on Presidential Debates, which are geared toward ensuring that the Republican and Democratic presidential candidates do not have to debate anyone else. The first essay discussed a peaceful method of protesting the policies of the CPD, and the third essay will detail the campaign of a hypothetical future third-party presidential candidate who makes use of the tactics described in the first and second essays.

History

In the weeks leading up to every United States presidential election, a series of debates between the candidates are held. When the current series of regular debates began in 1976, this was handled by the League of Women Voters. By 1987, the Republican and Democratic parties decided to take over control of the debates by creating the Commission on Presidential Debates, which was co-chaired by Frank Fahrenkopf and Paul G. Kirk, the Republican and Democratic national chairmen at the time. In 1988, the League of Women Voters announced their withdrawal from debate sponsorship, saying in a statement that

“…the demands of the two campaign organizations would perpetrate a fraud on the American voter. It has become clear to us that the candidates’ organizations aim to add debates to their list of campaign-trail charades devoid of substance, spontaneity and honest answers to tough questions. The League has no intention of becoming an accessory to the hoodwinking of the American public.”

The CPD has controlled all presidential debates involving Republican and Democratic candidates since 1988. At a 1987 press conference announcing the commission’s creation, Fahrenkopf said that the commission was not likely to include third-party candidates in debates. Kirk said that third-party candidates should be excluded. A third-party candidate has only been invited once; Ross Perot was allowed to debate in 1992 because both major-party candidates believed that his presence was in their self-interest and would help to draw support away from their major-party opponent. Perot was excluded when he ran again in 1996, and finished with less than half of the votes he earned in 1992. In 2000, the CPD established a rule that for a candidate to be included in the national debates he or she must garner at least 15 percent support across five national polls. This arbitrary and capricious standard has kept all third-party candidates from debating since its inception.

Peaceful Efforts

There have been many efforts by third-party candidates to gain access to the debate stage. The direct approach of trying to reach 15 percent in national polls has obviously been tried by all, with universal failure. The American election system encourages two parties, the media enables the exclusion of alternative voices, campaign financiers donate to the two major parties to maintain their corrupt bargains with the state, ballot access laws are rigged against third parties, and the pollsters either exclude the names of third-party candidates or ask about them after focusing on a two-candidate match-up which will not appear on the ballot. This creates an uphill battle to reach 15 percent which has proven too difficult for any third-party candidate since Perot, and it likely requires the billions of dollars that he had available. These factors together create a Catch-22: A third-party candidate needs to be in the debates to get the polling numbers needed to be in the debates.

Some candidates have realized the absurdity of this setup and tried to fight against it. In 2000, Green Party candidate Ralph Nader filed a complaint with the Federal Election Commission, alleging that corporate contributions to the CPD violate the Federal Election Campaign Act. The FEC ruled that they do not, and the D.C. Circuit Court declined to overrule the FEC. In 2004, Libertarian candidate Michael Badnarik and Green Party candidate David Cobb were arrested in St. Louis, Mo. when they attempted to enter a debate to serve an order to show cause to the CPD. In 2012, Libertarian candidate Gary Johnson filed an anti-trust lawsuit against the CPD, the Democratic National Committee, and the Republican National Committee in D.C. Circuit Court, citing the Sherman Act and claiming “illegal conspiracy or contract in restraint of trade.” The injuctive relief was denied, and the case was eventually dismissed in 2014 due to lack of jurisdiction. Also in 2012, Green Party candidate Jill Stein and her running mate Cheri Honkala were arrested by Hofstra University campus security when they attempted to enter the debate site. They were handcuffed and detained in a warehouse for eight hours before being released. In 2015, Johnson, Stein, the Libertarian Party, and the Green Party filed suit against the CPD, DNC, RNC, Barack Obama, and Mitt Romney, claiming violation of anti-trust laws. The case was dismissed in August 2016 on spurious reasoning, leaving an insufficient amount of time for an appeal.

Efforts to bring down the CPD by going after its sponsors have been similarly fruitless. While such efforts did lead to BBH New York, YWCA USA, and Philips Electronics withdrawing their sponsorship of the 2012 debates, no meaningful impact was made. As the CPD is only important every four years, it is difficult to maintain public engagement long enough to organize an economically significant boycott of the CPD’s corporate sponsors. Even if it were possible to effect such a boycott, the CPD is mostly funded by a small number of private donors who would be unaffected by a boycott in any meaningful way because their identities are hidden.

There have also been debates organized by Free and Equal which invite the most prominent third-party candidates along with the major-party candidates. But as part of the memoranda of understanding that major-party candidates make with each other, they have always agreed not to engage in non-CPD debates with other candidates. All non-CPD debates since the CPD was founded have featured third-party candidates only, and accordingly receive almost no press coverage.

Resorting To Force

It is clear that this problem is not going to be solved in a passive and peaceful manner. Just as government will not hold government accountable because it not in their self-interest to do so, government will not hold accountable a non-profit organization that serves the interest of those who control the government. If the CPD is to be brought down and its sorry excuses for debates either opened to third parties or shut down, a more active and forceful response is required. An active but peaceful method of filling the live audience with anti-duopoly hecklers was detailed in the first essay and is certainly worth attempting, but it is the sort of protest which the CPD could easily prevent in the future by further restricting the audience or holding its events without an audience. As such, let us make a philosophical case for a protest which resorts to force.

In order to justify the use of force within a libertarian moral framework, it is necessary to show that an act of aggression is being perpetrated and that the use of force in question defends against that act of aggression. Let us begin by laying out the facts of the case:

  • The CPD holds debates between presidential candidates.
  • Its criteria are clearly designed to exclude third-party candidates and produce a head-to-head presentation of the two major-party candidates.
  • All available evidence shows that a candidate must appear in these debates in order to win a presidential election.
  • Peaceful efforts to include third-party candidates have been stopped by force.
  • The President is the chief executive of the United States government, wielding immense power and influence over both the American people and the rest of the world.
  • The United States government, like any government, is a group of people who exercise a monopoly on initiatory force within a geographical area.

From these facts, it is clear that the CPD controls who gets to give orders to those who initiate force in American society, as well as who does not. Namely, only Republicans, Democrats, and those with enough money to run without either of the two parties gets a chance to do this. All others are excluded, and history shows that this exclusion is backed by violence. Involving oneself in third-party politics for the purpose of electing a president who will lessen the acts of aggression that government agents commit against people is unlikely to be the most effective method of defending oneself against the state, but it is a legitimate pragmatic option in a democratic statist system with a population that is unwilling to revolt. These defensive efforts are met with force by government agents who enforce the will of the CPD, DNC, and RNC. Further, the CPD and those who enforce their will act to silence the political speech of some people while amplifying the political speech of other people within a system in which there is no legitimate justification for doing so. Because such force is levied against defensive efforts, it is aggressive in nature, meaning that defensive force used against it is morally justified.

Next, we must consider which targets for this defensive force are legitimate and proper, concerns about organization, tactics and likely responses, and some potential objections.

Legitimate and Proper Targets

This is a case in which some legitimate targets for defensive force are not proper targets. This is because using force against them is within the bounds of the non-aggression principle, but doing so would not accomplish the goal. For example, using force against major-party presidential candidates is certainly justified as self-defense for other reasons, but doing so would be counterproductive in this case. The primary objective is to put third-party candidates on the debate stage for a proper discussion that informs the American people about all of their options, and this objective would be undermined by using violence against any presidential candidate. Neither would the secondary objective of shutting down CPD events be served by using force against the major-party nominees, as the DNC and/or RNC could simply substitute a new candidate and continue as before.

Likewise, using force against debate moderators, establishment press members covering the debate, or administrators of the hosting university would harm the cause. Even though they are complicit in acts of aggression against third-party candidates and their supporters, using force against them would make the protesters appear far less sympathetic to the American people. The legitimate and proper targets are the CPD board members, the debates themselves, and those who use force to protect them. The use of defensive force should be limited to them if at all possible. This would only become difficult in the event of a counter-offensive against the protesters in which major-party candidates, debate moderators, establishment press members, or university faculty decided to participate. Government agents are almost certain to disallow them from doing so, making this a dismissible concern.

Organization

A third-party candidate who has been excluded from the debates by the 15 percent rule but has enough ballot access to win the election and is constitutionally eligible to serve as President would have to be involved in any successful plan for forceful action. This is because it would be all but pointless to hear from a candidate who cannot win and serve, and fruitless to use force to place a candidate in the debates if the candidate does not wish to be so placed. An effort independent from any campaign to organize such an effort would be unlikely to result in anything other than a visit from federal agents to the organizers of said effort. But the candidate cannot be too involved. The candidate needs plausible deniability in order to avoid criminal charges, disavow anyone who goes off script, and be able to become President without having to worry about immediate impeachment.

A forceful protest would have to be organized outside of publicly available channels such as social media platforms, as using non-clandestine communications would alert government agents and result in the protesters being raided and arrested before they could begin. Plans would need to rely primarily upon existing groups near the area of a protest (such as local militia organizations) as well as campaign activists who are not officially connected to a campaign. This is because bringing in large numbers of armed people to a location from elsewhere would arouse suspicion, and involving official campaign staff is likely to get the candidate charged with crimes. Finally, such an effort would need to be planned several months in advance in order to get participants organized, mobilized, and familiarized with the specifics of the operation.

Tactics and Responses

A forceful protest against the CPD could take several forms. The most direct approach would be for a third-party candidate to march on a debate site with a group of armed supporters, declare that they are entering the debate site to place the candidate on stage, and indicate a willingness to escalate the use of force as far as necessary to accomplish this goal. The two most likely responses to this approach would be a violent skirmish in which the third-party candidate and many other people are injured or killed, or the cancellation of the debate due to the security risk being presented. Which one of the two occurred would depend on whether the security forces believed they could win a battle with the protesters. Further debates would be under much heavier guard to make sure that no other candidate attempts such an effort. As such, the direct approach strategy may be crossed off the list.

A second strategy would be to occupy the CPD offices in Washington, D.C. for the purpose of shutting down the CPD at the source. This would involve holding CPD personnel captive inside their headquarters and demanding open debates as the condition for their release. This approach is also very likely to go awry. Resistance on the part of the CPD personnel could very easily result in bloodshed, as could ignoring the protesters’ demands. If this were the only activity undertaken by protesters, then the debates could proceed as planned, putting the protesters in a position of either having to back down or escalate to harming the CPD personnel. This method would also be a public relations nightmare, as no one likes people who take hostages. The most likely response would be a SWAT raid that exterminates the protesters, followed by an establishment media demonization of all third-party candidates. As such, the office takeover strategy is also unviable.

A third method would be to occupy debate venues in advance for the purpose of shutting down CPD events unless they abolish the 15 percent rule and open the debates to all candidates who meet the constitutional eligibility and ballot access requirements. The CPD typically chooses three presidential debate sites, one vice presidential debate site, and an alternate site to use in case one of the former four becomes unusable for some reason. An armed occupation of all five sites for the duration of the debate season would require a few hundred people at each site and provisions to last three to four weeks. More protesters would need to be ready nationwide in order to prevent any hastily scheduled alternatives from having a venue, but given the amount of planning that is required for construction and security, these are not events which could be moved easily. Unlike the former two methods, the protesters would be in a defensive rather than an offensive posture once in position. This method also does far more to stop CPD activities because it targets said activities directly.

While it is true that government agents could overpower the protesters, doing so would needlessly spill a great amount of blood and give them some very negative press. Given the history of standoff incidents and the retaliations which have resulted from them, government agents tend to be more reserved about such confrontations than they once were. Thus, the most likely response by the CPD would be to cancel the debates for the election cycle, with the next most likely response being to give in to the protesters’ demands. Of course, the establishment media would have every reason to demonize the protesters, so there would have to be eloquent and reasonable public speakers among the protesters who could clearly articulate their objectives, why they are resorting to forceful means, and refute establishment media lies and fallacies. The rise of alternative media is certain to make a positive narrative easier to craft.

Objections

The first objection which may be raised is that the CPD is a private organization, and therefore its members have the right to admit or exclude whomever they want. This is an autistic response, as it completely denies the context of the situation. Neither the CPD, the DNC, nor the RNC are free market entities that operate by providing goods and services through voluntary means. These are organizations that are used by the elite to maintain their stranglehold on state power and the unfair advantages that they gain therefrom. While the CPD is considered a private, non-profit organization for legal purposes, it should not be regarded as a private organization for the purpose of determining what its members should be allowed to do because it is an instrument used by those who control the government as a means of perpetuating that control.

Second, some will argue that using force against the CPD violates the non-aggression principle. This stems from the proportionality of force doctrine and the immediate danger doctrine, two perversions of libertarian theory which were introduced by leftist entryists. If a defender may not use any amount of force necessary to stop an aggressor, then all an aggressor need do to get away with immoral behavior is to use force in such a way that the defender cannot use enough force to stop the aggressor. If one may only use force in a situation of immediate danger, then people are left without a way to recover stolen property, stop someone who hires hitmen, defend themselves against state aggression, or do much of anything about criminals who can obfuscate responsibility. With these fake libertarian theories rebutted, the facts of the case discussed earlier clearly demonstrate that the CPD is an aggressor.

A third objection is that all of the above uses of force described in the previous section can result in multiple felony charges for each protester. This is true, but it is no argument against such strategies. As Martin Luther King, Jr. wrote in Letter from a Birmingham Jail,

“One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’”

Just as government will not hold accountable itself or a non-profit organization that serves the interest of those who control the government because it is against their rational self-interest to do so, it is also in their self-interest to criminalize methods of protest which are capable of meaningfully challenging the establishment. Note that should a third-party candidate win a presidential election because his or her supporters resorted to force to stop the CPD from hosting exclusionary debates, the powers of the Presidency could be used to grant a full pardon to everyone involved. The only caveat is that the candidate must maintain a degree of distance from the protesters, as failure to do so could lead to impeachment proceedings.

A fourth concern is that presidential elections do not seem to change the course of the nation very much. Regardless of who wins, the deep state continues as before because there is no rational incentive for a politician to rein it in. In the current framework, this is true. But political campaigns can function as an outreach method for anti-establishment movements of all types because people give more weight to someone who is in the running to have a position of political authority over them. People who would normally never be listened to can gain a platform for their messages by running for office. That being said, it is likely that altering or abolishing the presidential debate structure would allow for different kinds of presidential candidates to win elections, some of whom may eschew realpolitik to rein in the deep state for ideological reasons.

Fifth, one may wonder why we should go after the presidential debates when there are bigger fish to fry. After all, liberty requires revolution, so why not try to end the state now? The answer is that the manpower and resources to succeed in such an endeavor are not yet available. The number of people required to stop the CPD would probably be a thousandfold less than the number of people required to abolish the United States government, and we must work within our means if we wish to be successful. That being said, a large conflagration begins with a single spark, and using force to attempt to stop the CPD could achieve this regardless of the end result. If the protest is successful, then those who would address their grievances by direct action will be emboldened. If government agents crush the protest, then many people will be angry and willing to seek retribution. Either outcome is favorable for a more broad revolutionary movement.

Conclusion

Finally, there is the objection that the use of force to gain debate access does not bear thinking about because no candidate is willing to do it. Unfortunately, this is true at the time of this writing. There are only two third parties of significance in 2016; the Libertarian Party and the Green Party. Addressing a grievance by force of arms is not the style of the Green Party. The 2016 Libertarian ticket consists of moderate ex-Republican governors, not revolutionaries who would be willing to resort to forceful tactics. The Constitution Party and other small third parties lack the voter base and popular support to mount such an effort, even if they were willing. It is thus clear that we should expect to see no armed protests in 2016, and the CPD will get away with their shenanigans once again. But as this may not always be the case, the third essay will consider a hypothetical future election in which there is a third-party candidate who decides to force his way onto the debate stage.

The Ethics Of Political Assassinations

At a campaign rally on August 9, Republican presidential nominee Donald Trump was discussing the possibility of Hillary Clinton appointing justices to the Supreme Court who could weaken gun rights, as well as what might be done about it. He said,

“Hillary wants to abolish — essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know. But I tell you what, that will be a horrible day, if Hillary gets to put her judges in, right now we’re tied.”

Predictably, every element of the establishment went apoplectic. Though the Trump campaign tried to clarify that he was speaking of energizing voters to stop Clinton at the polls, the Secret Service spoke with the Trump campaign, Clinton used the remarks for political hay, other Republicans denounced the remarks, and the lapdog media devoted entire blocks of programming to attacking Trump, accusing him of calling for Clinton’s assassination. How dare anyone speak of self-defense against a tyrannical government, they effectively said? How dare anyone inform the populace, even accidentally, of the true purpose of the Second Amendment? How dare anyone to the right of Leon Trotsky even think of political violence? On and on they went, decrying such a move as yet another sign of Trump being too dangerous a choice for the Presidency.

But should Trump be backpedaling? Was he really wrong to make such a suggestion, or is there a case to be made for political assassination? Let us examine both the moral and practical cases for political assassinations at an abstract and philosophical level, that we may apply them not to one politician, but to all.

The Moral Case

The word ‘assassinate’ is defined as “to kill (someone, such as a famous or important person) usually for political reasons.” Thus, it is just a fancy term for killing a particular kind of person for a particular reason. But a person’s fame or importance in the opinion of other people is of no concern with regard to objective moral standards. As such, we need only consider when it is justifiable to kill any person, regardless of their standing or affiliation. Fortunately, libertarian philosophy makes this simple. The non-aggression principle says that initiating the use of force is never acceptable, but using force defensively to stop an initiator of force is always acceptable. The question of how much defensive force may be used is also easy to answer. If a defender may not use any amount of force necessary to subdue an aggressor, then all an aggressor need do to get away with aggressive behavior is to use force in such a way that the defender cannot use enough force to subdue the aggressor. To believe in limitations on defensive force is to believe that might makes right, which is the antithesis of both philosophy and morality. Thus, unlimited force is justified in order to defend against an aggressor.

The state is defined as a group of people who exercise a monopoly on initiating the use of force within a geographical area. Some people are directly involved in this; these are the police, military, and other enforcement agents of the state. Other people are indirectly involved; these are the politicians, bureaucrats, and regulators. The enforcement class are clearly legitimate targets for defensive force, as they are direct aggressors. Their job is to initiate the use of force on behalf of the latter group, escalating the use of force as far as they must in order to gain compliance. But the political class are also involved in aggression, as they give the enforcers the orders that they carry out. To say that they may not be forcefully defended against equivalent to saying that one may kill aggressors in self-defense but must hold harmless any people who are hiring and directing the aggressors. This is an absurd result because it places the onus upon the would-be victim to spend one’s life either evading a practically endless series of aggressors or giving into their demands rather than allowing the would-be victim to end the threat. Because the political class gives commands to the enforcement class and will hire more members to join the enforcement class should some be killed by the civilian population, members of the political class are as legitimate a target as members of the enforcement class. Therefore, political assassinations are morally justifiable.

Practical Concerns

Although political assassinations are morally justifiable, they tend to be tactically unwise. Whenever a politician is assassinated, another one steps into the office to take his or her place. Abolition of a political office solely by the means of eliminating its current occupant is impossible by design. Whereas people have been assassinating politicians for almost as long as there have been politicians, those who wield state power have figured out the necessity of having a line of succession for positions which are essential for the functioning of the state apparatus in order to ensure continuity of said apparatus. In many cases, there is even a mechanism to keep power within the same political faction should a politician have to replace an assassinated politician. The state is a hydra; cut off one head and more grow back in its place. If the state is to be abolished by force (and it must be), its body must be destroyed, which is to say the enforcement class rather than the political class. After all, the political class cannot rule if no one is willing to enforce their rule because the citizenry have made that occupation too hazardous.

Another disadvantage is that assassinations are frequently used by the ruling class as a pretext to disarm the citizenry and seize more power for themselves. Not only does it follow the dictum of never allowing a crisis to go to waste, but it allows state propagandists to fear-monger and portray an environment of random predation that can strike even the rulers, necessitating an expansion of state power and curtailment of civil liberties because according to them, it is the only possible provider of security. The lapdog media would, of course, do its part to paint those who would use violence in self-defense against government as deranged lunatics and those in government as the heroes who will protect everyone from this “danger.” Lone assassins lack the means to shut enough of their lying mouths, and there are still few people in the alternative media who are willing to defend political assassinations, so the establishment narrative would become dominant. The end result is that the state is empowered by small, isolated attacks upon its figureheads. Only a more robust resistance against the enforcement class rather than the political class could overcome these challenges.

That being said, political assassinations can serve as a form of vigilante justice. Everyone knows that government will not hold government accountable, as the practical purpose of the state is to do that which would be criminal for anyone else and use the state’s monopoly on criminal justice to escape punishment. Politicians and their minions frequently victimize people, then hide behind the legal shield of sovereign immunity should people try to use the courts to seek justice. When people are wronged and they can find no justice through the system for dispute resolution because the system will not turn on itself, vigilante justice is better than no justice at all.

Finally, political assassinations can have value to an anti-state movement as propaganda of the deed. In any revolution, someone must make the first move, and there are usually many people who would be willing to revolt but are unwilling to make that first move. One assassin willing to eliminate a high-profile target and sacrifice one’s liberty (and possibly life as well) by doing so can be both the catalyst and the martyr for a revolutionary movement that topples an oppressive regime.

Conclusion

The probability that political assassinations will bring liberty by themselves is slim, but there is no objective moral prohibition against utilizing such tactics. Whether to resort to such measures is a subjective value judgment that each individual or group must make. As always, an essential feature of liberty is to take one’s own risks, reap one’s own rewards, and suffer one’s own consequences. What is certain is that, in the famous words of Otto von Bismarck, “It is not by speeches and majority resolutions that the great questions of the day are decided—but by iron and blood.”

Supreme Court upholds racism, rejects meritocracy

On June 23, the Supreme Court announced its decision in the case of Fisher v. University of Texas at Austin, which decided whether an admissions system which considers the race of the applicant is constitutional. In Texas, the top ten percent of high school students are guaranteed admission if they want it. The remainder of the incoming freshman class, about 25 percent, is filled by considering the academic performance as well as other factors, race being among them. The “Top Ten Percent” law has been in effect since 1997, and UT-Austin has been using its current admissions process since 2004. UT-Austin adopted its current policy after concluding that its prior race-neutral process did not reach its goal of a more diverse student body. The justices decided by a 4-3 vote that “[t]he race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause.” UT-Austin may therefore continue using its current system.

The majority opinion was delivered by Justice Anthony Kennedy and was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Clarence Thomas filed a dissenting opinion. Justice Samuel Alito filed another dissenting opinion which was joined by Chief Justice John Roberts and Justice Thomas. Justice Elena Kagan recused herself from the case.

Writing for the majority, Justice Kennedy said, “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity. In striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.’ The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

In his dissent, Justice Thomas said, “[T]he Court’s decision today is irreconcilable with strict scrutiny, rests on pernicious assumptions about race, and departs from many of our precedents. I write separately to reaffirm that ‘a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.’ ‘The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.’ That constitutional imperative does not change in the face of a ‘faddish theory’ that racial discrimination may produce ‘educational benefits.’ The Court was wrong to hold otherwise in Grutter v. Bollinger (2003). I would overrule Grutter and reverse the Fifth Circuit’s judgment.”

In his dissent, Justice Alito said, “Something strange has happened since our prior decision in this case. In that decision, we held that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied. On remand, UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that request. To the extent that UT has ever moved beyond a plea for deference and identified the relevant interests in more specific terms, its efforts have been shifting, unpersuasive, and, at times, less than candid.”

The case began in 2008 when Abigail Fisher, a Caucasian woman who was not in the top ten percent of her high school class, was denied admission to UT-Austin’s freshman class. She filed suit, alleging that the University’s consideration of race in its admissions process disadvantaged Caucasian people in violation of the Equal Protection Clause of the Fourteenth Amendment. The U.S. District Court and the Fifth Circuit Court of Appeals sided with the University. The Supreme Court vacated the judgment in 2013 and remanded the case back to the Court of Appeals, which again sided with the University.

In the interest of fairness, it must be noted that this was an exceptionally poor test case. Of the 47 students with grades lower than Fisher’s who were admitted, only five of them were racial minorities. There were also 168 racial minority students with grades equal or greater to Fisher’s who were denied admission that year. Furthermore, Fisher turned down an offer under which she could have attended another Texas university her freshman year, earned at least a 3.2 GPA, and transferred to UT-Austin for her sophomore year. But what of a white student with a superior record to that of Fisher, but not quite in the automatic top ten percent? Such a student can be denied admission under standards like that of UT-Austin (which exist elsewhere as well) in favor of a student of minority race with inferior academic performance. The Supreme Court has affirmed a standard of racial diversity over pure meritocracy, and because there are measurable intelligence differences between population groups, has upheld a policy of anti-white and (anti-Asian) racism in doing so.