Patriotic, Patriotic, Put Your Hands All Over My Documents
The Patriot Act link I’ve had at the top of the page, shamon.com/repeal, is dead. But the site has now been resurrected at www.repealnow.com, and the link has been revised accordingly. Also, don’t miss John Ashcroft’s Patriot Act Summer Tour.
(Incidentally, HTML amateur that I am, I’ve only just this week figured out how to make linkable images without those blue borders!)
Jesus Wants Your Money
On September 9, Alabamians will go to the polls to vote on a proposed tax increase. Like a 21st-century Son of Sam, Governor Bob Riley has claimed that his support for the measure is based on instructions from Jesus. Obviously Riley, despite his much-advertised regular Bible study sessions, never got as far as Exodus 20: 15, let alone I Samuel 8: 4-20. (But I wonder why enacting tax hikes in response to divine dictates doesn’t run afoul of the separation of church and state?)
Supporters of the plan say that Alabama’s poor are overtaxed while its rich are undertaxed. It’s certainly true that the poor are overtaxed. But what could it mean to say that the rich are undertaxed? From the standpoint of justice, theft is, as Aristotle notes (Nicomachean Ethics II. 6), one of those acts for which there is no “mean,” or moderate quantity, but rather any amount is too much. And from the standpoint of utility, how could it ever be advantageous to transfer more resources from the competitive economic marketplace to the bureaucratic and corrupt political marketplace?
Supporters of Gov. Riley’s theocratic tax plan point out, correctly, that Alabama state services are pitifully underfunded. But the solution to Alabama’s funding woes does not lie in a tax increase.
The state government of Alabama is a monopoly, legally insulated from market competition. On the basis of this fact we can confidently predict that the amount of money needed to fund Alabama state services is far less than what the state currently spends.
There are two reasons for this.
First, the state government does not have as much incentive to economise costs as a competitive enterprise would have, because, unlike a competitive enterprise, the state government runs no risk of losing customers to a competitor. No matter how far taxes exceed necessary costs, Alabama’s customers cannot withdraw their patronage except by physically relocating to another state. By contrast, if Office Max were to start charging more than Office Depot for the same service, its customers could easily switch to the competitor.
Second, even if (let’s imagine) state officials were all saintly folks who could be counted on to make their best effort to economise regardless of incentives, in the absence of competition they could have no way of knowing how efficient their methods are. Unless different ways of providing these services are allowed to compete for customers, how can the providers determine whether the particular method they have adopted is the best available?
As Ludwig von Mises painstakingly demonstrated during the last century, efficient utilisation of resources is possible only in a competitive market context. Entrusting vital services to a government monopoly ensures that resources will be wasted and misallocated. Such results naturally hurt the poor more than anyone.
Those who value the welfare of Alabama’s poor will aid them better if, rather than diverting further productive resources into the political sinkpit of Montgomery, they work to strip the Alabama state government of its monopoly status and institute a competitive market in those services that Alabama’s rulers presently arrogate to themselves.
If you want justice, work for anarchy.
Spencer Smeared Again
Today on LewRockwell.com I have an article, Herbert Spencer: The Defamation Continues, protesting Edwin Black’s attempt, in his book War Against the Weak, to link the great libertarian philosopher to the eugenicists’ program of compulsory sterilisation. Check it out.
The Stone Idol
Libertarians are divided over Alabama Justice Roy Moore and his two-and-a-half-ton Ten Commandments monument. Those who favour the monument’s removal from the courthouse rotunda see it as an issue of the separation of church and state. Those who favour allowing the monument to stay see it as an issue of states’ rights.
In the end I come down on the side of favouring removal; but the issues are not simple.
Moore himself sees the issue as one of whether Alabamians have the right to acknowledge the Ten Commandments as the foundation of our legal system. That of course is a double confusion: first, the question is not what the people of Alabama may do but what the government of Alabama may do (a government that is theoretically supposed to represent all its citizens, not just those of a particular creed); second, it is simply historically illiterate to assert that the Ten Commandments are the foundation of our legal system, which in fact derives primarily from the Roman and Anglo-Saxon traditions – traditions that became Christian only late in their development. The Declaration of Independence (whose author was of course a Deist, not a Christian) makes no specific reference to the Judeo-Christian God, while the U. S. Constitution quite deliberately makes no reference to God at all. The Treaty of Tripoli, passed unanimously by the U. S. Senate in 1797, contains the assurance: “The government of the United States is not in any sense founded on the Christian religion.”
But the question at hand is not what Moore thinks about the issue, but what libertarians should think about the issue. Still, it’s difficult to separate the issue of the Ten Commandments monument from the issue of Roy Moore himself. As an advocate of the judicial murder of homosexuals*, Moore is so detestable a figure that any defeat for the man seems worth cheering for. We really shouldn’t let our enemies pick our sides for us, however. Even worthy causes have unsavoury proponents. (Should we think better of Hitler because Stalin opposed him? Should we think better of Stalin because Hitler opposed him?)
Many of those who oppose Moore say, “Even if he were right, it’s his job as a judge to abide by the decisions of his judicial superiors rather than engage in civil disobedience.” I cannot agree with that claim at all. If Moore’s position is the just one, then it is his duty to stick to his guns and defy the removal order. But is his position the just one?
It is important here to distinguish two different questions: first, what is the Constitutional solution to this problem, and second, what is the just solution to this problem? There is no guarantee that these two questions will always have the same answer. As readers of this journal know, I subscribe to the Spoonerite principle that where competing interpretations of a Constitutional provision are possible, the one most favourable to liberty should be chosen. But when a provision’s meaning is unambiguously illibertarian, even Spoonerite jurisprudence cannot bring constitutionality and justice into alignment.
Is the Ten Commandments monument constitutional? This question resolves into two more specific questions: a) does the First Amendment apply to the States? and b) does the First Amendment prohibit displays like Moore’s monument?
With regard to (a), Moore has made much of the fact that the First Amendment mentions only a restriction on acts of Congress. But the Fourteenth Amendment forbids the States to “abridge the privileges or immunities of citizens of the United States.” If that does not mean that the Constitution’s guarantees of rights against the Federal Government are extended to encompass guarantees of rights against the State governments as well, then what on earth does it mean?**
What about (b)? Is it an “establishment of religion” for a State judge to display the Ten Commandments in his courthouse? If the monument were there for purely historical or artistic reasons, perhaps not – though that is debatable. But Moore has made quite clear that the purpose of the monument is to acknowledge the Judeo-Christian God. An official governmental declaration that one particular religion is correct is precisely what an “establishment of religion” amounts to. (Fox News thoughtcop Bill O’Reilly keeps insisting that the Ten Commandments are not specific to any one religion – presumably because the Judeo-Christian tradition encompasses several religions. He seems to think that a religion cannot have more specific religions as its proper parts – but that is surely false.)
But what, Moore’s supporters ask, about the Ten Commandments plaque in the Supreme Court building, or the motto “In God We Trust” on our coins, or the fact that Congress is opened with a prayer? Well, all of those are arguably unconstitutional as well. (Though, as I’ve noted, the Ten Commandments plaque in the Supreme Court obviously does not have the same significance as Moore’s monument, because, well, the Supreme Court doesn’t mean it. The same point applies to the statue of Themis, Greek goddess of Justice, that graces many courtrooms.) Nor is such a position as radical a departure from the intentions of the Founders as Moore’s supporters suggest: Alexander Hamilton objected to the practice of opening Congress with prayer; Thomas Jefferson, as President, refused to declare any national days of prayer and thanksgiving, on the grounds that such declarations violate the First Amendment. (And of course the intention of the document takes precedence over the intentions of the Founders in any case.)
In my judgment, then, Moore’s monument does indeed violate the First and Fourteenth Amendments. It is a transgression of the U. S. Constitution. But now we come to the moral question: should the Federal Constitution’s authority override the decisions of State officials in this way? Or, to put it another way: is the Fourteenth Amendment a good idea? Should the Federal government compel State governments to obey the Bill of Rights? After all, libertarians are fans of decentralisation. When the national government intervenes to protect us from local tyranny, should that be reckoned an increase in freedom – or should it instead be seen as weakening local autonomy and strengthening the power of the central Leviathan?
I prefer not to frame this as an issue of “states’ rights” – since, as an anarchist, I regard states as criminal organisations that have no rights. Neither the United States Government nor the State of Alabama has a “right” to do anything. Neither can claim justice on its side. From an anarchist perspective, the conflict between the two is a tussle between two rival gangs of thugs; we cannot in good conscience endorse either side.
There is no reason, however, to suppose we must be indifferent as to which of two rival gangs of thugs gains power over us. If the Mafia and the Khmer Rouge were fighting to control Alabama, and no comparable force was available to resist them both, we would be well-advised to hope for a Mafia victory, since life under Mafia rule would be infinitely preferable to life under Khmer Rouge rule. We can still ask, then, to which side in the current flap it would be most expedient to give, not our principled endorsement, but our strategic support.
On the one hand, as comments by Moore and his claque have made abundantly clear, the Ten Commandments is clearly intended as an opening wedge of theocratic oppression in Alabama – an evil to be fought tooth and nail. On the other hand, I think decentralisation is a good thing. Decentralisation down to the level of the idividual is my ideal, but decentralisation to local autonomous regions is at least a second best. I prefer the original Articles of Confederation (even though they mention God!) to the more centralised Constitution that succeeded them. I favour the disunion of the present United States into 50 independent nations. I would support (albeit with fear and trembling!) the secession of Alabama from the Union. And I have nothing but suspicion of the motives of the Federal government when it offers to protect us from the States.
Why, then, do I support (strategically) the Federal order to remove the Ten Commandments monument from the Alabama courthouse rotunda? More broadly, why do I support (strategically) Federal efforts to compel State governments to abide by the Bill of Rights? My reason is this: it is an anachronism to think of our State governments as in any serious sense counterweights to Federal tyranny. While Federal and State governments may clash from time to time – particularly when such clashes allow an elected judge to grandstand for his constituents – for the most part the State and Federal governments are entwined into a single criminal organisation that oppresses us. The States have become more akin to administrative departments within the Federal government than independent agents affiliated with it; the Federal government so regularly overrides the States that this latest issue is only a tiny drop in an enormous bucket. As a result, I’m more inclined to throw my strategic support to whichever head of the hydra is supporting the less oppressive policy on any given issue. In other words, I would be willing to accept the Ten Commandments monument if doing so were the price of achieving a significant degree of decentralisation (at which point I’d refocus my sights on the political dismemberment of Alabama itself), but not if all it buys me is a more oppressive state government with no significant decrease in centralisation. My position, then, is: strategic support for the Bill of Rights, whether at the State or the Federal level. I can see why libertarians of good will might judge that trade-off differently; but that’s the view from my head.
Still, as matters stand I’m willing to propose a compromise: let the monument stay, so long as Roy Moore himself goes. Such a compromise should be acceptable to both sides. Moore’s supporters presumably value the Ten Commandments more than they value this one judge; and Moore’s opponents surely find the judge more objectionable than the monument. Keep the chunk, dump the skunk.
* In a court opinion denying child custody to a lesbian parent, Moore wrote:
Homosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a crime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies one's ability to describe it. ... The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.** Moreover, the Fourteenth Amendment also forbids any state to “deny to any person within its jurisdiction the equal protection of the laws.” Are non-Christians and non-Jews really guaranteed equal protection in Roy Moore’s courtroom? (We know homosexuals aren’t.) For that matter, as I’ve argued previously, the Fourteenth Amendment, properly interpreted, extends all of libertarian rights theory to cover the States. But this claim is not necessary in order to make my present point.
My friend Rich Hammer, President of the Free Nation Foundation, has an article this week on A Free Market in Emergency Power on the Mises Blog. Check it out!
By the Numbers
Civilian deaths caused by al-Qaida terrorists in 9/11 attack on World Trade Center: 2,823
Civilian deaths caused by U. S. Forces in Operation Iraqi Freedom (so far): 37,123
Who Defends Marriage?
One popular argument against same-sex marriages is a linguistic one: marriage, it is alleged, is by definition a relationship between a man and a woman, so whatever legal relation gay couples may wish to establish for themselves, it shouldn’t be called marriage.
Even if this argument were sound, it would prove less than many of its proponents would like; it wouldn’t tell at all against what a concern for equal protection appears in any case to mandate: the establishment of a legal status for same-sex partnerships granting such partners rights equivalent to those of legal spouses. All it would prove is that this legal status should be called something other than “marriage.”
But how good is the linguistic argument? Not very, I think. By the logic of this argument, the First Amendment’s term “press” should not apply to photojournalism, its term “religion” should not apply to Mormonism, and the Second Amendment’s term “arms” should not apply to Colt revolvers, because none of these existed at the time the Amendments were written.
It is true that the term “marriage” has traditionally been applied to heterosexual unions only (though often polygamous ones). But it is also true that the term “marriage” has traditionally been applied exclusively to relationships in which the husband held legal authority over the wife – relationships in which the wife was not only subordinated to her husband but actually absorbed into his legal identity. If we are going to appeal to traditional usage to deny that same-sex partnerships are genuine marriages, then by the same argument we will have to deny that relationships between legal equals can count as marriages. In the traditional meaning of “marriage,” then, there are no married couples in the United States today.
If instead we insist that relationships among legal equals can be marriages, then we have granted that marriage is an open-textured concept whose meaning is not limited to its historically given forms; in that case, same-sex marriage can no longer be ruled out by linguistic fiat. The question now becomes: what are the most important and relevant features of heterosexual marriage today, and do same-sex unions share those features?
Religious conservatives will no doubt respond that the most important and relevant features of heterosexual marriage concern reproductive functions which homosexual unions necessarily cannot share. (Ironically, when discussing social issues, religious conservatives tend to display an odd enthusiasm for biological considerations over spiritual ones; I’m tempted to call them “Creationists for Social Darwinism,” or perhaps “Dualists for Reductive Materialism.”) Now the institution of marriage may well owe its origin to biological factors; but as I have written elsewhere:
In biological terms, the family originates in the need to nurture offspring. ... But the evolutionary process is resourceful. A trait that initially emerges to meet one need, may then be pressed into service to meet another. There are evolutionary advantages to maintaining a cooperative relationship among family members beyond the point needed to ensure the continuation of the species. And with the highest animals, not only biological evolution but cultural evolution can come into play (e.g., a cat who is raised to regard mice as playmates rather than prey may in turn raise a whole generation of peacenik cats).What homosexuals seek from legal unions is in no fundamental way different from what heterosexuals seek from them. If goods are defined by the needs they serve, then “marriage” is the appropriate name for such unions.
Among humans, the family still serves the original function of childrearing, but it has acquired a robust range of new functions as well, serving both the economic and the emotional needs of its members. The family has grown beyond its original biological basis, thus dramatically increasing the number of possible family structures.
A parallel can be made to language. Presumably, language first evolved in order to convey information vital for survival, such as “There’s a sabretooth tiger behind that outcropping” or “Don't eat those, they’re the mushrooms that made me sick before.” And language still serves that function. But today language also serves a broad range of spiritual needs whose relation to physical survival is tenuous at best. To condemn (as many conservatives do) family relationships that are not for the purpose of childrearing is like condemning Shakespeare’s Hamlet for not telling us where the sabretooth tiger is. ...
[H]uman beings have managed to make out of the sexual pair-bond something superior to what nature originally provided. ... [T]he nature of marriage is not inherently determined by the particular form it takes in a given society. Marriage and the family are historical phenomena, and cannot be defined in separation from the way they develop over time.
[T]he Pope can’t change the nature of marriage. It existed, by necessity of human nature, long before Jesus or even Abraham. Every society has had some version of it, but none has ever seen fit to establish marriage between members of the same sex – or more precisely, to call homosexual unions “marriages.”My replies to this argument are as follows:
This has nothing to do with mere disapproval of sodomy. Even societies that were indifferent to sodomy saw no reason to treat same-sex domestic partnerships as marriages. Why not? Because such unions don’t produce children.
Imagine a society in which homosexuality was considered normal and healthy, while heterosexuals were considered perverted. It would still be necessary to have heterosexual marriage as an institution, even if it was a sort of penal institution, for the sake of taking care of the children these “perverts” produced. ...
Again, what society has ever seen any point in “married” homosexuals? ... If same-sex “marriage” were anything but a sudden modern fad, we’d surely have heard of it before. But it was never even a fad; it was merely a contradiction in terms, not worth considering.
Black on the Right Side, White on the Left
Bele: It is obvious to the most simple-minded that Lokai is of an inferior breed.The dispute between Bele and Lokai is, obviously, a satire on the stupidity of racism. But it could serve equally well as a satire on liberal and conservative ideologies. To those who hang out in the seedier quadrants of the Nolan Chart, the difference between liberals and conservatives looks deep and significant; but seen from the libertarian quadrant it’s all rather baffling. “We want to control our neighbours’ bodies and reading material, but not their money or their means of self-defense.” “How dreadful! We want to control our neighbours’ money and means of self-defense, but not their bodies or their reading material.” I’m with Spock; I fail to see the significant difference.
Spock: The obvious visual evidence, Commissioner, is that he is of the same breed as yourself.
Bele: Are you blind, Commander Spock? Well, look at me. Look at me!
Kirk: You are black on one side and white on the other.
Bele: I am black on the right side.
Spock: I fail to see the significant difference.
Bele: Lokai is white on the right side. All of his people are white on the right side.
– Star Trek episode “Let That Be Your Last Battlefield”
Guess what else is banned in Iraq these days? Cell phones! (Though unlike guns, these were illegal before the American occupation as well.) See the full story here.
Why exactly are U. S troops forbidding Iraqi civilians to use cell phones? Just one more step in the “liberation” of that lucky country, I guess.
The Droghte of March
Cornell University’s Arts & Sciences Newsletter for Summer 2003 contains a quotation from Andrew Dickson White, Cornell’s first president (better known to libertarians for his writings on fiat money inflation). In 1862, describing the aims of the institution he was then helping Ezra Cornell to found, White wrote:
There is needed a truly great university. First, to secure a place where the most highly prized instruction may be afforded to all – regardless of sex or color. Secondly, to turn the current of mercantile morality which has so long swept through this land. Thirdly, to temper and restrain the current of military passion which is to sweep through the land hereafter. Fourthly, to offer an asylum for Science – where truth shall be sought for truth’s sake, where it shall not be the main purpose of the faculty to stretch or cut science exactly to fit ‘Revealed Religion.’ Fifthly, to afford a center and a school for a new Literature – not graceful and indifferent to wrong but earnest – nerved and armed to battle for the right. Sixthly, to give a chance for instruction in moral philosophy, history, and political economy unwarped to suit present abuses in politics and religion. Seventhly, to secure the rudiments, at least, of a legal training in which Legality shall not crush Humanity. Eighthly, to modify the existing plan of education in matters of detail where it is in vain to hope improvement from the existing universities. Ninthly, to afford a nucleus around which liberally-minded men of learning – men scattered throughout the land, comparatively purposeless and powerless – could cluster, making this institution a center from which ideas and men shall go forth to bless the nation during ages.An admirably clear and well-written passage, I thought. Hence my astonishment to see Philip E. Lewis, Cornell’s outgoing Dean of Arts and Sciences, characterise White’s proposal as “slightly archaic language.”