The Case For Judicial Corporal Punishment

The modern penal state is geared towards keeping its prisoners institutionalized, which is to say totally conditioned to the rhythms, desires, and goals of the penal state itself. This process supports the penal state, for institutionalized men and women usually commit more crimes once they return to the outside world. While low intelligence and poor impulse control can explain many cases of recidivism, they cannot explain all cases.

The state and its private prison contractors make more money off of full bunks and crowded cells. Ergo, stringent laws and the growth of the criminal justice system benefits the state at every level. For liberty to exist, this prison-industrial complex must be destroyed. The simplest method for accomplishing this is to return to the pre-modern punishments that the prison-industrial complex replaced. For more serious crimes, exile and outlawry could be reintroduced. For lesser offenses, a return to judicial corporal punishment is a superior alternative to the dehumanizing penal state. Let us explore the history of judicial corporal punishment, make the case for bringing back such punishments, and deal with likely objections.

A History of Violence

In the opening passage of his influential book Discipline and Punish, left-wing philosopher Michel Foucault characterizes pre-modern punishment as a gory spectator sport:

On 2 March 1757, Damiens the regicide was condemned ‘to make the amende honorable before the main door of the Church of Paris,’ where he was to be ‘taken and conveyed in a car, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds’; then, ‘in he said cart, to the Place de Greve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses’…”[1]

The brutal evisceration of Damiens was meant to purge the body politic of one man’s infection. In Foucault’s telling, pre-modern punishment was personal and designed to be didactic (thus the importance of the punishment being seen). Pre-modern punishment was also based around the monarch. For instance, Foucault talks about the ceremony of punishment and how pre-modern kings usually spoke of crime as an assault on them, the office of the sovereign, and, by extension, God. Modern leaders, by contrast, usually speak of crime as aassault on and debt owed to society.

Such public humiliation was not confined to the Old World. Prior to the American Revolution, public executions and lesser punishments such as branding were undertaken by colonial authorities acting on behalf of both the British king and their colonial charters. In Puritan Massachusetts, “scolds” and “brawlers” were placed into the cucking stool. Most commonly associated with witchcraft trials, cucking stools were simple machines whereby guilty parties were repeatedly dunked into “purifying” waters. Elsewhere in colonial New England, bickering couples or fornicators were sentenced to the pillory, where, side-by-side, they were subject to the violent whims of the community that they had angered with their “ungodly” behavior. Property crimes in colonial New England prompted similarly harsh treatment. Those who committed tiefen, or the theft of livestock, food, or clothing from farms, had their ears removed. Counterfeiters suffered the same fate until new laws were established in 1806. Arsonists typically met with a noose.[2]

Popular history has remembered the Puritans as stern and superstitious provincials who saw the Devil peeking around every corner. However, they were a law-abiding society that utilized sharp punishments because of their unusual mixture of theocracy and republican virtue. Namely, every New England citizen was encouraged to spy on each other in order to ensure good behavior. If one local man left his barn door open or if a local woman talked too much, then the delicate covenant with God could be broken. Puritans protected this covenant like they protected their homes against Indian raids—with violence and prejudice.

The colonial South differed very little from New England in terms of its approach to corrective justice. 17th century Virginia saw criminals branded or mutilated in some way. As for prisons, the first one in American history may have been the English ship Susan Constant, the very same vessel that carried Captain John Smith and the Jamestown settlers to the New World.

The Coming of Prisons

British officials were bitten by the criminal justice reform bug early in the 18th century. As a result, James Oglethorpe, who was concerned about debt prisoners in Great Britain, was given control over the Colony of Georgia, North America’s largest penal colony. Here, work and the fresh air became substitutes for dank dungeons or “barbaric” practices like branding or mutilation.

During America’s push westward, physical punishment carried on in much the same way as it had in the 17th century. Horse thieves were hung by vigilante committees, while lynching parties tended to do the work of judges and juries. The lynching parties in the rural South tended to have a racial character, with whites killing black men under charges of rape or engaging in sexual improprieties with white women.

Back on the East Coast, criminal justice reform moved towards a supposedly more humane model of punishment. As was the case in England, American Quakers led the charge for prison systems that were designed to change the behavior of their inmates. From the late 18th century onward, America’s prisons became correctional institutions where wardens attempted to guide their charges to better lifestyles through work, contemplation, and isolation.

For Foucault, the linchpin to this new prison system was the Panopticon—a cyclopean tower that stood in the middle of a ring of prison cells. From this guard tower, prison officials hoped to direct the behavior and thought patterns of their prisoners. He writes,

Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary…”[3]

The power of the Panopticon lies in the fact those within the purview of its vision can never be sure if they are being watched. Even if no one is controlling the tower, most prisoners will act as if someone is observing them. The theory of the Panopticon can today be found in the United Kingdom, where closed-circuit television cameras abound on almost every street corner. In the United States, not only is the NSA busy spying on everyone, but technology companies like Google and Facebook use their power to discourage “wrongthink” concerning political issues.

However, as powerful as the Panopticon is, it would have never been born without the Enlightenment and America’s transition from a limited monarchy to a constitutional republic. Rather than seeing crime as an offense against one person (the sovereign) or against a limited community, crime became seen as an offense against the entire society (the demos). It thus became cruel to subject criminals to customized punishments and important that criminals be kept away from the masses. The modern penal state does just that, but the process of creating a separate culture of prisoners actually rationalizes criminality. Criminals were once those who trespassed against divine authority, but criminality is now a profession that has a finishing school called prison.

Peace Through Force

The modern penal state has only been successful in producing more criminals. This is part of its business model, so in order to find a superior alternative, we must do away with the modern penal state. In its place should be private citizens and municipal authorities which do not receive any money from the federal government. Rather than operate contemporary prisons, these communities would subject criminals who have been convicted of serious crimes to flogging, branding, or other such corporal punishments. The most incorrigible criminals would be subject to execution or exile as an outlaw rather than life in prison. Lesser offenses would merit restitution to be performed in a different sort of prison that those which are common today.

It should go without saying that children should not be subject to judicial corporal punishment. Just as using physical violence at the individual level of the parent to discipline children violates the non-aggression principle, so too would the use of communal violence. Instead, every effort to reason with children and teach them virtue must be made. It is only after all such efforts are exhausted to no avail and a disobedient child grows into a criminal adult that they should feel the sting of the lash.

The practitioners should ideally be those aggrieved by the criminals; otherwise, the administrators should be the natural leaders in the community. Because one of the largest problems in modern culture is that the true nature of reality is hidden from the masses, the new corporal punishments should be performed in public, with all citizens encouraged to witness the acts and hear the reasons for them. Bringing back pre-modern punishments would show everyone that violence is disgusting and only righteous when used to deter aggression.

Another added benefit would be that criminal trials and punishments would be an expedited affair. Currently, the average time of criminal trials, whether for misdemeanors or felonies, is anywhere between three months and several years. In the proposed system, trials would be faster, primarily because one of the key components of this system would be a streamlined criminal code. There would be less crimes on the books, for libertarian theory only considers crime to be those offenses which victimize or threaten a person or property. For example, simple possession of drugs or engaging in prostitution in secret would be considered vices rather than crimes, to merit the attentions of the beadle rather than the policeman.

Along with faster trials and more efficient punishments, a return to pre-modern methodologies of punishment would curtail the demand for prisons. At best, only medium-sized jails would be needed to temporarily house those awaiting trial. And since life imprisonment would no longer be an available sentence, there would be no need for “supermax” correctional facilities that cost taxpayers millions of dollars every year. There would only be two options for the most hardened criminals: death or banishment from society.

Objections

As with an earlier proposal for private security, the first likely objection is that bringing back pre-modern punishments would incentivize vigilantism and the madness of crowds. Liberals will claim that such a proposal all but guarantees a return to lynching and racial injustice. Although there is no guarantee that every community would act perfectly rationally, every liberal must answer this question: is it better to have injustice on a small scale or on an industrial scale? Would community-organized punishment really be that much worse than the current penal state, which has seen millions of men pass through its doors thanks to pointless drug laws? The critic would also be conflating racial injustice with the methods of punishment being used, when the two are separate issues. Furthermore, the proposal is not to abandon a judicial structure in favor of vigilantism, but to reintroduce corporal punishment into a judicial structure.

Another possible objection is that the mentally or physically unfit would be subject to corporal punishment. This can be resolved by barring the mentally or physically unfit from certain punishments, although both could still face an array of pre-modern punishments, including permanent house arrest, banishment, and even cruel execution. Doctors and other medical professionals would play a key role in determining whether someone is fit for punishments such as flogging or branding.

A third objection would be that the proposed system would not deter crime. After all, there has never been any conclusive proof that the death penalty deters crime. Indeed, some of the most hardened criminals may even have a death wish. But this may have more to do with the current practice of capital punishment rather than its effectiveness in all cases. Capital punishment in America is a drawn-out process that often sees inmates waiting on death row for decades. Some famous criminals, such as Charles Manson and members of the Ripper Crew, were sentenced to death, but had the good fortune to be housed in liberal states that discontinued capital punishment. A pre-modern regime would not give criminals the chance to languish away in government-subsidized cells complete with food, showers, clothing, televisions, and other amenities. Similarly, rather than be injected with toxins or shocked with thousands of volts of electricity in secret death chambers, criminals would be publicly humiliated in view of all of society. Such an attack on personal pride and vanity would strike a deep cord in most criminals.

Fourth, some will condemn the use of corporal punishment as anti-libertarian, or at least counterproductive. As noted above, such arguments are correct when applied to children, but for adult aggressors who inflict bodily harm upon others, these are merely aesthetic and utilitarian concerns which play no role in libertarian theory. As Murray Rothbard writes,

“In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.”[4]

This comes not out of concern for efficacy or even deterrence, but out of concern for logical consistency.

Finally, the greatest objection to this proposal in America is the Eighth Amendment, which outlaws “cruel and unusual punishment.” While this amendment was written with the good intention of restraining the state, it prevents the punishment from fitting the crime in the event of cruel and unusual crimes. One could also argue that the entire concept of a prison is cruel and should be unusual. Furthermore, cruelty done in the name of justice is not immoral. While it may be cruel to brand a criminal for horse thievery, the original act of theft may have been just as cruel, if not more so, especially if a family depended on that horse for its livelihood.

Conclusion

The current penal state institutionalizes bad behavior and encourages recidivism in the form of social ostracism and limited economic prospects. By contrast, a pre-modern approach to criminal justice, even with its attendant violence, does more to discourage repeat offenders and the marginally criminally-minded. Better yet, a pre-modern system would do away with lengthy trials and the specter of long, taxpayer-funded waits on death row. Punishments would be quick, vicious, and public, thus increasing the likelihood of deterrence.

Such a system would have no need for the central state. All trials and punishments could be carried out at the local level. Judges, bailiffs, juries, punishers, and executioners could all be local residents. The holding cells would also have little need for federal funding, for local resources are generally enough for temporary housing before trial. A pre-modern punishment regime would decrease crime, cut out the vampiric state and its bloated penal system, and put authority back into the hands of municipalities.

References:

  1. Foucault, Michael (1977). Discipline and Punish: The Birth of the Prison. Random House. p. 3
  2. Mofford, Juliet Haines (2012). “The Devil Made Me Do It”: Crime and Punishment in Early New England. Globe Pequot Press.
  3. Foucault, p. 201
  4. Rothbard, Murray (1982). The Ethics of Liberty. Humanities Press. p. 89

Twelve Observations On The Catalonia Independence Vote

On September 6, the government in Catalonia announced that it was going to hold a vote on October 1 to decide whether the region should secede from Spain and become a nation-state unto itself in the form of a republic. It also announced that should the people choose independence, the government would declare secession within 48 hours. Spain’s constitutional court declared the vote unconstitutional, and the central government in Madrid said that it would attempt to stop the vote. Neither side backed down. The Spanish government seized ballots and tried to shut down polling places, resulting in violence that left over 840 people injured. The vote still took place, with nearly 90 percent voting for independence. In response, pro-secession protests occurred throughout Spain and a general strike was called across Catalonia. Spain and the European Union have rejected Catalonia’s requests for mediation, and King Felipe VI has denounced the secession movement. Twelve observations on these events follow.

1. One cannot understand the present without knowing the past. The formation of the current Spanish state can be dated to 1469, when the Christian kingdoms of Castile and Aragon were united by the marriage of Isabella I of Castile and Ferdinand II of Aragon. Under their leadership, the last Muslim rulers were expelled from Spain, Christopher Columbus was sent to the New World, and royal power was centralized at the expense of local nobility. Even so, Spain has always been a multi-ethnic state, composed of Basques, Catalans, Galicians, and others. In the 19th century, nationalist feelings among these groups grew. These aspirations took a back seat during the Cuban War of Independence, Phillipine Revolution, and Spanish-American War. Regions of Spain were granted greater autonomy in the Second Spanish Republic (1931-39), but this was brutally repressed during Francisco Franco’s dictatorship (1939-75), such that people were not even allowed to give their children Basque, Catalan, Galician names. After Franco’s death, Spain was turned into a semi-federal state with 17 autonomous communities, some of which have their own languages and cultures, as Catalonia does.

2. The Catalan independence movement cuts across ordinary political lines. Some people in Catalonia believe that independence would bring order to the region’s finances, or make taxes paid by Catalonians provide more benefit to Catalonians. Others are migrants who became involved with the Catalan movement and have no loyalty to the government in Madrid. Still others have particular political objectives that they believe to be easier to achieve on a smaller scale, such as an independent Catalonia rather than the entirety of Spain. In American terms, the parties which are in a temporary alliance to achieve independence run the gamut from the Constitution Party to the Green Party.

3. The harder one clenches one’s fist, the more sand slips through one’s fingers. For the Madrid government, responding with peaceful dismissal of the independence vote would have been more effective. Instead, they met peaceful efforts by Catalans with violence. In the words of a Spanish politician, “We have given them the pictures they want.” By forcefully opposing the self-determination of Catalans, the Spanish government is pushing swing voters toward the independence movement, as such actions raise the specter of Franco that is still remembered, particularly among older people. Furthermore, the creation of a new state is much easier if existing states recognize it, and images for foreign consumption of people trying to vote and being hit with truncheons and shot with rubber bullets for it will create pressure on other governments from their people to recognize Catalonian independence.

4. The voting results are questionable. The Catalan government rushed through the legislation for the referendum and passed it in a late-night session without the opposition being present. They vowed to secede even if turnout was low, and engaged in smear tactics against those who opposed independence. Turnout was only 42.3 percent, and the anti-independence side did not campaign because the government in Madrid declared the vote to be illegal.

5. This will provoke greater nationalist sentiment in the rest of Spain. Whenever separatist sentiment grows in one part of a nation, a unionist sentiment tends to grow elsewhere in reaction to it. In some cases, this occurs because the separatists threaten to remove an economically important area from the nation, such as a mine or a seaport. In others, such as the American Civil War, the separatists are engaged in activities that the unionists find morally reprehensible. Sometimes, a central government simply wishes to keep separatists subjugated so as to discourage other separatist movements elsewhere in the nation, such as in the Basque country. Whatever the case may be, nationalism in Madrid is likely to grow alongside secessionism in Catalonia. This will be bolstered by the fact that Catalonia is more leftist than the rest of Spain, as nationalism tends to be more common on the right.

6. Nationalism is not an ally of liberty; merely an enemy of some of liberty’s enemies. The nationalist sentiments of Catalans or anyone else in Spain will not lead to liberty in and of themselves. Only by coupling such sentiments with the principles of self-ownership, non-aggression, and respect for private property can a libertarian social order emerge. Nationalism is also hostile to any decentralizations of power below the national level. That being said, nationalism is certainly a lesser evil than globalism, and may serve as a temporary makeshift on the path to a better political arrangement.

7. The EU will be weakened regardless of the end result. If Catalonia becomes independent, it will be outside the EU, having to either apply to rejoin or have its move toward independence also serve as a Catexit, so to speak. Given Catalonia’s population of 7,522,596 and GDP of $255.204 billion, this would remove 1.47 percent of the population and 1.23 percent of the GDP from the EU. By contrast, Brexit will remove 12.83 percent of the population and 13.45 percent of the GDP from the EU. Even though Brexit is a much larger issue, the impact of a Catexit would still be noticeable. Catalonians are unlikely to want to exit the EU, but doing so may be unavoidable if they cannot gain admission once they are independent.

As per the previous point, it is also necessary to contemplate a Spexit, with or without Catalonia included. Growing nationalism in Spain as a reaction to growing separatism in Catalonia may lead to euroskepticism there. This, combined with longstanding economic issues in Spain such as high unemployment, may lead conservatives to contemplate the possibility of a brighter future outside of the European single market. A complete Spexit would remove 9.08 percent of the population and 5.94 percent of the GDP from the EU, while only Catalonia remaining in the EU would remove 7.61 percent of the population and 4.71 percent of the GDP from the EU. Though not as impactful as Brexit, a second member state leaving the EU could signal the beginning of the end.

Finally, regardless of whether any exits occur, the EU will almost certainly appear to be weak and ineffectual as a result of recent events. Calls for it to mediate the dispute have gone unanswered, and the EU seems intent on ignoring repression of a democratic vote. Given the EU commission’s threats of sanctions against Hungary and Poland for their anti-democratic policies, this seems rather hypocritical. One must also consider that the EU has no mechanism for dealing with such an issue. Article 3a of the Treaty of Lisbon calls for the EU to “respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order, and safeguarding national security,” so it is unlikely to help the separatists. Nor is it in the rational self-interest of anyone who wields power in the EU to intervene, as doing so would encourage separatists in other EU nation-states.

8. Secessionist movements are fueled by economic hardship and government mismanagement. The role of the Catalan people in Spain is both privileged and marginalized. Even though Catalans have maintained a distinct identity, they contribute more to Spain than they receive in return, especially in terms of institutional influence, which remains dominated by Madrid. Since the 2008 financial crisis, this has exacerbated tensions, and the continued economic problems in Spain lead some Catalonians to believe that they could do better for themselves with more local governance.

9. The state is legitimized only by force. The simple truth is that any other basis for legitimacy is subject to reason and defeated thereby. A deity fails because no such being is proven to exist. A constitution fails because any person or group can write one, leaving the state’s legitimacy constantly imperiled. An appeal to tradition fails because all traditions and states must begin somewhere, leaving them unable to be formed in the first place. A supranational body fails because it begs the question of how it gets its legitimacy. A social contract fails because a valid contract must be entered into willfully by all parties. Democracy fails because it is a logical impossibility, which could not even appear to function without the state already in place, thus resulting in circular reasoning.

Mao Zedong spoke truly on the nature of state legitimacy; “Political power grows out of the barrel of a gun.” A state continues to operate because it violently subjugates anyone who would attempt to end its operation, and it maintains territorial integrity by violently suppressing any efforts by its people to secede from the state. The only factor preventing individuals or sub-national groups from gaining sovereignty is the fact that they lack the force of arms and/or the willingness to use them for that purpose.

10. Self-determination must be taken and defended by force. Given the previous point, the path to true independence is clear. A separatist movement must first declare independence, but this will never be sufficient. The larger state will seek to retain any breakaway provinces by force, and if the separatists wish to form a new nation rather than be imprisoned or executed on charges of sedition or treason, they must respond with defensive force to the aggressions of the larger state. This has been the norm at least since the American Revolution, and the Catalonian situation is shaping up to be no different.

In a more general theoretical sense, self-determination must be taken and defended by force because the failure to do so will result in some group of aggressors infringing upon one’s self-determination. As Vegetius said, “He, therefore, who desires peace, should prepare for war.” Only by doing this can one present an effective deterrent against those who would return a free people to a state of bondage.

11. Repression by the Spanish government may provoke terrorism. Should the violence escalate, as appears likely, some Catalonians may end up following the Basque model. In the Basque Country, there is a moderate nationalist and separatist movement, much like the Catalonian independence movement. But there is also the ETA, a paramilitary group that has engaged in terrorist acts for decades. The group was founded in 1959 during Franco’s regime, but continued carrying out attacks for decades after the restoration of regional autonomy. Other examples of this throughout the world include the Irish Republican Army and the PKK in Kurdish regions of Iran, Iraq, Syria, and Turkey. Notably, the Kurds are also attempting to create a new state for themselves at the time of this writing.

12. The international community functions as a cartel. Catalonia and Iraqi Kurdistan are currently attempting to become independent nation-states, and both are being met with a mixture of indifference and contempt from existing nation-states. That such movements provoke hostility from the remainder of their current states is understandable and has been addressed above, as has the uneasiness of foreign governments to recognize the independence of separatist movements. But there is more at work here, which may be explained by considering the role of cartels in a marketplace and the effects that decentralization would have if taken to its logical conclusion.

The standard libertarian view is that cartels are inherently unstable, as the incentive of each member has a profit motive to betray the cartel. This incentive is frequently countered by state interference in the economy to protect a cartel from this effect. There is no more profitable venture in the current system than the management of a state, so this profit motive is amplified alongside the protectionist motive as an equal and opposite reaction. But libertarians tend to under-appreciate the role of aggressive violence in the marketplace, which is a service for sale like any other. This keeps them from fully understanding situations like these, in which established players seek not only to out-compete upstarts or hamstring them through regulatory capture, but to engage in direct violent suppression of competitors.

Finally, the rulers of nation-states must be aware at some level that the entry of new polities into the established order has the potential to remove that order from power. In the words of Murray Rothbard,

Once one concedes that a single world government is not necessary, then where does one logically stop at the permissibility of separate states? If Canada and the United States can be separate nations without being denounced as in a state of impermissible ‘anarchy,’ why may not the South secede from the United States? New York State from the Union? New York City from the state? Why may not Manhattan secede? Each neighbourhood? Each block? Each house? Each person? But, of course, if each person may secede from government, we have virtually arrived at the purely free society, where defense is supplied along with all other services by the free market and where the invasive State has ceased to exist.”[1]

Taken to its logical conclusion, political exit may be disintegrative, but stopping somewhat short of atomized individualism would both remove the Cathedral from power and create the opportunity to build a superior form of social order. The establishment has no interest in allowing this to happen and would rather nip it in the bud at the expense of looking oppressive and/or indifferent than risk losing their global hegemony.

Taken together, these explanations help one understand why the established nation-states, despite their contrary interests, can agree that no new members should be able to join their club.

References:

1. Rothbard, Murray (2009). Man, Economy, and State with Power and Market. Ludwig von Mises Institute, Scholar’s Edition, 2nd ed. p. 1051.

Privatizing State Security

The title of this article is an intentional contradiction. Not only is the modern state a coercive body that initiates and sustains itself through violence (thereby lying through its teeth about “national security”), but the real aim of this article is to bypass the state security apparatus altogether. In short, this article will make a modest proposal: in order to subvert the military-industrial complex, citizens and parallel alternative institutions should think of security in private terms.

First and foremost, security is the duty of individuals. Everyone should realize that nobody can care about their own lives as much as they do. Therefore, owning a gun or any other weapon is neither an extravagance nor an antisocial threat; it is the most effective means of protecting one’s most fundamental right, the right to life.

If a disability or some other impairment makes self-protection an impossibility, then families or communities should fulfill that role. In contemporary society, many people suffer when these steps of self-defense are bypassed completely and the state is given total control over security, especially those who live in urban centers or states with restrictive gun laws. The police cannot be everywhere at all times, and much of their time and effort is consumed by enforcing useless laws which actually endanger the public.

Besides inefficiency, relying on the state for one’s personal safety is a gross waste of money. On a national scale, there is no entity that drains the coffers quite like the Pentagon. Late in 2016, the Defense Business Board released a report criticizing the Pentagon for trying to cover up $125 billion in bureaucratic waste. Besides wasting roughly $400 billion on the clearly deficient F-35 Joint Strike Fighter, the United States military apparatus wastes taxpayer money on such vague extravagances like “overhead” and “administrative fees.”

If such monumental waste is not enough to convince people that America has a problem, then the continuing mess in Afghanistan should. After sixteen years of warfare, the Taliban is still holding large swaths of the country, ISIS is putting up a fight, and the government in Kabul remains mind-numbingly corrupt. This is what $714 billion of taxpayer money has won us so far.

President Donald Trump came into Washington, D.C. with promises of making “America First” not only an economic slogan, but also a foreign policy motivation. Before he became a candidate, he railed against the waste of the Afghan war and hinted that, if elected president, he’d pull US troops out of the country.

The president had a chance to do just that in August 2017. He chose instead to send a small, additional force of 4,000 troops—the type of force that is big enough to look like his administration is doing something, but too small to have any meaningful significance on the ground. Half-measures usually mean nothing, but half-measures really mean nothing if they do not go hand-in-hand with policy changes or new modes of strategic planning.

President Trump’s Afghanistan strategy should only merit our attention because it briefly shined a light on a true alternative. Erik Prince, the former US Navy SEAL who founded Blackwater USA and now runs Frontier Services Group Ltd., proposed replacing America’s military with private contractors. Prince’s solution promised to not only save $40 billion a year, but its establishment of a “viceroy” (an old imperial term that Prince used in a somewhat cheeky fashion) and a smaller, more specialized American military force would mean less bodybags coming home on C-130s every year.

Prince’s proposal was not only shot down like an enemy plane, but, while discussing his plans on NPR, Prince was labeled a “warmonger,” criticized for trying to undermine the morale of military NCOs, and lambasted by nominal liberals for denying the state its right to unlimited control over violence. Throughout it all, Prince kept reminding his opponents that private warfare is as old as prostitution, and is certainly not uncommon in American history.

Private warfare is due for a comeback. However, not all mercenaries are equal. Each type of private warfare that can be found in history has had its downsides. Several will be discussed below with an eye towards finding which one could be best utilized in the fight against the tyrannical warfare-welfare state. A private military ethos could not only break the back of warfare socialism, which has become standard in the United States with or without war, but it could also begin the process of conditioning American citizens away from thinking about the state as being synonymous with security.

The Freikorps Model

Right after the armistice to end World War I was signed, millions of German troops returned to a Germany that they thought would welcome them as heroes. That is not what happened at all. Following the declaration of the German Republic, which was controlled by the Majority Socialists (the Social Democratic Party, or SPD), many on the German left seized the opportunity to formalize Karl Marx’s dream of a communist German state. The most organized of these groups were the Spartacists, a collection of radical Bolsheviks led by Karl Liebknecht and Rosa Luxemburg (the latter of whom was a naturalized German citizen of Polish-Jewish ancestry). The Spartacists and their sympathizers briefly controlled Berlin, and were in certain parts joined in their rebellion by mutinous sailors from the major German port of Kiel.

For the Sparticists, this revolution was not only in fulfillment of Marx’s dream of a proletarian utopia in Europe’s most industrially advanced nation, but it was also a way to kill the “sellout” republic in its infancy. In this one respect they were right, for many of the Social Democrats like President Friedrich Ebert and Minister of Defense Gustav Noske were Wilhelmian patriots who had supported the war and who were not entirely committed to the aims of the leftist elements in their party.

The new government needed to put down these rebellions quickly. The problem was that several members of the German defense establishment were on the side of the communists. The Chief of Police in Berlin at the time was Emil Eichhorn, a member of the Independent Social Democratic Party of Germany (USPD) and a man dedicated to supporting the Bolshevik takeover of the Prussian capital. At one point, Eichhorn released several political prisoners, including several well-known communists.

Desperate to suppress this communist rebellion, the Republic turned to the new private militaries known as the Free Corps (Freikorps). Not wanting to return to normal life and what they saw as the constraining norms of the bourgeoisie, thousands of soldiers volunteered to serve in regiments headed by authoritarian junior officers. From the very outset, these troops loathed the new German Republic and saw its supporters as the chief reason why they lost the war (the “Stab-in-the-Back myth”). But, for the time being, Ebert and Noske believed that these battle-hardened veterans would need little encouragement to begin attacking communists on German streets. They were right.

However, in making a pact with the devil, the Weimar government spelled its own doom in 1919. After all, Freikorps soldiers despised liberal democracy and always saw the eradication of “Western” values in Germany as their raison d’être. In the book Vanguard of Nazism, Canadian historian Robert G. L. Waite quotes one Freikorps soldier as saying that their mission was always political:

“These people still believe that could build on the same lies and false sentiments with which—in spite of unheard of sacrifices on the part of soldiers—they had lost the war against the Western world. Now this lie was fulfilled through the acceptance of Western democracy. Now this blasphemy was made official. The western bourgeoisie had triumphed…We [the students of 1918] replied: We must become nihilists in order to crush tis rottenness underfoot.”[1]

Not long after performing services on behalf of the government, the Freikorps soldiers became, in their own words, “outlaws” who rampaged and pillaged ostentatiously on behalf of German nationalism, but, more truthfully, on behalf of their own desire for action. Freikorps units, which designated their commanding officers as Führer, believed in the principle of “primitive man.”

One of the admirers of Captain Hermann Ehrhardt, the leader of the best Freikorps unit, the Marinebrigade Ehrhardt, was positively described as having a “primitiveness and simplicity” that exuded a “stoic soldierly instinct” that had no time for “political or philosophical convictions.”[2] Such mindless destruction saw Freikorps units pillaging the Baltic territories on behalf of Germany and the White Russian Army. Other Freikorps soldiers found more appeal in the violent radicalism of the Bolsheviks and the Führer Vladimir Lenin.[3] These “Freebooters” craved action and violence. They became a law unto themselves, as evidenced by the Feme murders, a series of political assassinations that may have killed as many as 354 “traitors” on behalf of the German Volk.[4]

The problem with recreating a Free Corps movement in America is obvious: such political militias can never be fully trusted by owners of property or those who seek a stabilized social order. The Freikorps glorified in chaos, and chaos is the enemy of liberty. The story of the “beefsteak” Nazis (brown on the outside, red on the inside) also sheds light on the fact that Freikorps soldiers routinely switched their allegiances, especially between the two most powerful totalitarian ideologies.

While a Free Corps movement made up of American veterans may not be so prone to utopian ideologies, America in 2017 is not Germany in 1918. American degeneracy is caused by prosperity, not material poverty or the shame of military defeat.

The Condottieri Model

It is easy to romanticize the military engagements of the Middle Ages. After all, unlike modern wars perpetrated by nation-states, warfare during the medieval age was a small-scale affair between kings and their private armies. Most of the time, medieval cities and villages were left alone so long as they paid a fee and offered up no resistance. In Anatomy of the State, Murray Rothbard quotes F.J.P. Veale in saying that “the rich burghers and merchants of medieval Italy were too busy making money and enjoying life to undertake the hardships and dangers of soldiering themselves.”[5] Therefore, these townspeople hired foreign mercenaries to defend them. When a threat was neutralized and the job was done, these mercenaries were paid and told to go away.

The benefit of this system was that civilians were mostly left alone and could continue with life and trade. Theoretically, these mercenaries would try to avoid unnecessary casualties, and would only attack villagers and burghers if their payment was not forthcoming. Unfortunately, this is not always how it played out. As noted by Joseph R. Stromberg, many mercenaries of the Early Modern period set out to become territorial lords, which essentially meant that they began wars of aggression in order to claim private kingdoms. “Many mercenary captains aspired to become outright political rulers—men on horseback—rather than mere subcontractors in the business of security provision.”[6]

Although these mercenaries, known in Italy as condottieri, did not engage in the type of warfare that indiscriminately killed civilians or created undue hardships to lives and property, they nevertheless injected political chaos wherever they went. Then as now, mercenary bands attracted men of action who grow easily bored with too much peace. Such men are prone to engaging in conflict only to satisfy their boredom. In the 19th century, American filibusters (not to be confused with the parliamentary tactic) undertook private military expeditions to Latin America in order to aid local liberals, establish private fiefdoms, and/or spread the business of slavery. In the 20th century, adventurers have had a hand in destabilizing Germany, Africa, and Asia.

The idea of creating modern mercenaries in America is downright silly. First, foreigners should never be in charge of another nation’s security. Second, mercenary warfare in the presence of states is almost always offensive in nature, thereby making imperial expeditions all but a certainty.

The Militia Model

The militia has a long and storied tradition in American history. Militia troops were key to the American victory in the Revolutionary War, for militia units utilized small-scale tactics, guerrilla warfare, and targeted assassination of British commanders that forced the British to penetrate deep into the American hinterlands. This over-extended British supply lines, thereby making it easy for American militia fighters to win the day in small to medium-sized battles.

Militias are also synonymous with republics. The Second Amendment not only enshrines the right to self-defense, but the right to form militias as well, though both came under heavy attack by the Supreme Court in the intervening years. In a better world, all American communities would be able to form their own militias in order to protect their property rights and dissuade the vampiric state from overstepping its official limitations. Militias do not have to be standing forces, but it would be in the best interest of a community if all able-bodied men were well-trained and adequately prepared for emergencies and insurgency-style warfare. The best feature about militias are that their small size and local focus make them best-suited for defensive warfare rather than offensive warfare. Militias are not designed for long, extended wars of conquest. Rather, a militia unit is designed for low-intensity conflict wherein they have the advantage in regards to intelligence, knowledge of terrain, and maneuverability.

Modern America will undoubtedly recoil at the very proposal of forming militias. Thanks to a campaign of disinformation during the 1990s, when homegrown militias became synonymous with white supremacist politics and domestic terrorism, any militia that forms today will be quickly infiltrated by government agents. A militia directly threatens the state’s monopoly on violence. The state and its supporters know this. Look no further than the overreaction surrounding the standoff between Ammon Bundy and Western ranchers against the Bureau of Land Management. The same people who fret over “Islamophobia” and police brutality towards blacks were the same ones advocating for dropping bombs on American citizens.

Conclusion

The painful truth is that all these options would be snuffed out by the modern Leviathan state. From a purely logical perspective, an American Free Corps might work, so long as sympathetic junior officers decided that it was right to let their men become political soldiers. The US military has many regulations dictating what service members can and cannot do while in uniform. Therefore, any Free Corps creation would automatically go against the oaths that many of its potential members took upon enlisting in the US military. Most take these oaths very seriously.

The likelihood of American mercenary bands serving stateside is nil. While libertarian or right-wing mercenaries serving abroad is a bettter idea than current practices, these men will undoubtably face prosecution on charges of treason or terrorism for daring to fight for a country or an idea that goes against progressive liberalism.

In the end, a militia force makes the most sense if Americans are serious about maintaining their local liberty in the face of an increasingly tyrannical state. That said, this militia must function in strict secrecy. Wearing uniforms and bearing flags is a sure way to draw the attention of the FBI or local law enforcement. Conversely, without such uniformity, many military bands lose cohesion and fall into infighting.

Unfortunately, there are no perfect answers to this situation. The idea of a powerful state is now unthinkingly accepted by Democrats, Republicans, and centrists. Republicans rely on the votes of military members past and present, and so would be unlikely to support any measure that threatens the force and violence monopoly enjoyed by the Pentagon. Democrats would shriek “racism” and “terrorism,” and would run to the receptive state in order to have these units put down with extreme prejudice. It is also unlikely that many ordinary Americans will rush to join bands of guerrilla fighters, despite the promise of status and a bit of excitement.

At this point in time, the best thing that could be hoped for is that a wide swath of Americans would come to accept the reality that the security of their lives and the lives of their neighbors depends on them and their willingness to use force in defense of life, liberty, and property. This thought crime starts the process of rejecting the state’s monopoly on violence, and could ultimately lead to a new, more privatized model of security. But until we can produce more thought criminals, arguing over how to best create private security entities is a fruitless endeavor.

References:

1. Waite, Robert G. L. (1969) Vanguard of Nazism: The Free Corps Movement in Postwar Germany, 1918-1923. W.W. Norton and Company. p. 55.

2. Ibid, p. 165.

3. Ibid, p. 274-275.

4. Ibid, p. 216.

5. Rothbard, Murray (1974). Anatomy of the State. The Ludwig von Mises Institute. p. 49.

6. Stromberg, Joseph R. (2003). “Mercenaries, Guerrillas, Militias, and the Defense of Minimal States and Free Societies.” The Myth of National Defense: Essays on the theory and History of Security Production, ed. Hans-Hermann Hoppe. p. 219.