Angels and Agency

And when I think that I'm alone
It seems there's more of us at home
It's a multitude of angels
And they're playing with my heart
--Eurythmics

In Federalist 51, James Madison famously introduces his 'angels' analogy when considering the agency problem inherent to government.

"But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions."

Madison's solution to the agency problem was a government design that separated powers between the legislative, executive, and judicial branches as well as diversifying the source and timing of choosing government officials in order to make consensus difficult.

Fine ideas to be sure. However, unlike the anti-federalists, Madison clearly did not foresee the extent to which the non-angels would seek to circumvent the framers' design to achieve their interests. 

Constitution Day

Benjamin Martin: May I sit with you?
Charlotte Selton: It's a free country. Or at least it will be.
--The Patriot

Two hundred and thirty four years ago, 39 delegates to the Constitutional Convention signed the document that would be debated among the states and, ultimately, ratified through supermajority approval nine months later.

Its contents remain exceptional and, unfortunately, unknown to most Americans. 

If you count yourself among them, then it's a fine day to throw off your ignorance.

Government Scope

And baby I'll rule, 
I'll rule, I'll rule, I'll rule
Let me live that fantasy
--Lorde

The natural unit of government is the individual--i.e., self-government. God gifted us with the unalienable right to govern ourselves.

For various reasons, most of them nefarious, man has sought to expand the scope of government beyond himself. Stated differently, he seeks to govern others.

The possibilities range from reigning over a few nearby neighbors to dominion over multitudes spread far and wide. The categorical possibilities correspond to the geographic scopes associated with various units of expanded government:

local
state or provincial
national
regional
global

When the Constitution was in the process of being ratified, debate centered on whether government power should be tilted toward state or national authority--although many anti-federalists argued that only designs that brought more authority to the local level would be effective.

Ongoing disagreements in Europe center on power struggles between nations and regional government (i.e., the EU).

One-world socialists contend that all people on earth should be subject to a single governing body.

Man's persistent quest to expand the scope of government has quite literally put liberty under attack since the beginning of social time.

Hamilton's Play

"I've been played like a grand piano by the master, Gekko the Great."
--Bud Fox (Wall Street)

In late July of 1789, the state of New York held its constitutional convention. Ratification by New York was not necessary for the United States to come into being, as the Constitution had already been approved by ten states by the time New York representative met. Only nine 'yes' votes were required.

Instead, the state convention essentially became a referendum on whether New York would join the union.

There was opposition. Drawing from the Antifederalist argument, many worried that the central government would grow too big and powerful, thereby marginalizing state sovereignty.

Nonsense, said one of the greatest proponents of strong central government--New York's own Alexander Hamilton. The co-author of the Federalist Papers addressed the convention:

"Gentlemen indulge too many unreasonable apprehensions of danger to the State governments. They seem to suppose that the moment you put men into a national council, they become corrupt and tyrannical and lose all their affection for their fellow citizens. But can we imagine that the Senators will ever be so insensible of their own advantage as to sacrifice the genuine interest of their constituents?"

The Antifederalists certainly imagined it. And it is difficult to argue with the prescience of their vision.

It is also difficult not to surmise that Hamilton was being at least a tad disingenuous with his esteemed colleagues at the state convention. After all, the ink was barely dry after the state signing before he began arguing that the Constitution contained implied powers that granted the federal government greater authority over the states. Post Constitution, Hamilton became perhaps the most vocal proponent of strong central government.

Did the delegates at the New York ratification convention realize that they were being played?

Truth Never Dies

"You can break a man's skull. You can arrest him. You can throw him into a dungeon. But how do you control what's up here? How do you fight an idea? 
--Sextus (Ben-Hur)

Did our founding ancestors draft a perfect Constitution? Plainly, no. They should have taken the anti-federalists' advice and decentralized more. There are also clear divergences from natural law, such as the Three Fifths clause.

But, despite their errors, the founders were on the right track. Their design addressed the perpetual struggle that has framed society since the beginning of civilization--that of force versus freedom.  Our founding ancestors conceived a governing structure grounded in liberty.

Their vision remains radical and true. So radical and true that statists go to no end to suppress it.

Fortunately, the Lenten season reminds us that truth never dies.

Voting Sanctions Violence

In violent times
You shouldn't have to sell your soul
In black and white
They really, really ought to know
--Tears for Fears

In lieu of recent events, Kim Strassel argues that people should not settle political differences with acts of violence. Instead, they should settle them at the ballot box.

These bombs threats are nasty and cowardly acts. We don’t settle disputes with violence—or with mobs. It is why we have a ballot box.

— Kimberley Strassel (@KimStrassel) October 24, 2018

She does not seem to understand that, in democratic elections, voting is a form of sanctioning violence. Voters become principals of violence when they elect strong armed government agents to force some to do the will of others.

Save for the rare instances where people vote to push government back toward its proper scope in a peaceful manner, voting constitutes pulling levers of aggression.

Militia Clause

"The army is a broadsword, not a scalpel. Trust me, senator, you do not want the Army in an American city."
--General William Devereaux (The Siege) 

Ryan McMaken researches the rationale behind the Second Amendment with a focus on the 'Militia Clause' portion of the Amendment. The Amendment reads:

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

Review of the debates surrounding the establishment of the Second Amendment finds that our founding ancestors had a more sophisticated view of gun ownership than is often assumed. In particular, they understood that a large federal military that stood in peacetime would threaten liberty over time. "When once a standing army is created in any country," said George Mason, "the people lose their liberty."

To counter the threat posed by a standing federal army, the founders envisioned militias in each state. These militias were not of the organized variety similar to today's National Guard. Instead, they were 'unorganized' militias composed of people who could capably bear arms and organize if need be to defend their states against intrusion by federal forces.

Importantly, the Second Amendment, similar to the First Amendment, was not written for the states. Rather, it was written as a restriction on the federal government. The states were still free to regulate weaponry in their own constitutions and legislatures. Most state legislatures elected to include provisions protecting private gun ownership--both as an element of the state's overall militia strategy and for personal protection.

Interestingly enough, those present at the Constitutional Convention in Philadelphia toyed with the idea of 'select militia' of specially trained citizens not unlike today's National Guard. However, they rejected it out of concerns that a select militia would pose similar threats to a national army.

McMaken ends by noting that, ironically, many 'defenders' of the Second Amendment today also enthusiastically support a strong federal military establishment--something that many of our founding ancestors would have found incomprehensible.

Consent and Contract

"Should the American colonies government themselves independently? I believe that they can, and they should."
--Benjamin Martin (The Patriot)

Judge Nap notes that one of the radical ideas underpinning the Declaration of Independence is that no government is valid if it does not enjoy consent of the governed. This concept was unheard of in 1776. No prior ruler claimed consent of the governed as a basis for legitimacy. Instead, as in England, rulers were often promoted as devine and perfect. Governments served at the pleasure of the king--which inevitably meant shaking down the king's 'subjects' to support the throne's pleasures.

But, as the judge asks, what does 'consent of the governed' mean? Do you consent to a particular government by the act of voting in a democratic election? What if the government is run by someone who you voted against? Do you consent to a government that enacts policies that you disagree with? Can a person avoid government by not giving consent?

Consent implies a contract--a contract between those who govern and those who are governed. Valid contracts require explicit, voluntary approval of those involved--either thru direct participation in hammering out and agreeing to the contract's terms or by indirect involvement thru agents explicitly designated by the contract's principals.

But those conditions are rarely in place between governments and the governed. Most policies enacted by governments have not been legitimately contracted--implying that the governments themselves are illegitimate.

Does this mean that 'consent of the governed' is an impossible dream? How is it possible to retain a government from one generation to the next under conditions of valid contract?

It seems to me that the only practical way that people can legitimately be governed on an ongoing basis is if the terms of the contract are so basic and obvious that no one would reasonably disagree with them. No theft. No fraud. No slavery. No murder.

Stated differently, no aggression.

Living in accordance with a higher, natural law is what our founding ancestors envisioned all would be willing to consent to.

Mayhew's Discourse and Higher Law

"So, here's to the men who did what was considered wrong, in order to do what they knew was right...what they KNEW was right."
--Benjamin Franklin Gates (National Treasure)

Jonathan Mayhew was a Congregationalist minister in colonial Boston. He was an outspoken classical liberal who routinely integrated political views into his sermons. In 1750, he delivered a sermon titled A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers. The sermon was widely published in both colonial America and in England.

Mayhew's sermon vigorously espoused American rights. Colonists had a right to liberty, he argued, and a duty to resist and "throw off" (a term later borrowed by Jefferson) tyrannical government.

His argument was grounded in the idea that there was a Higher Law that superseded government law. Higher Law was similar to ancient Common Law. Common Law had evolved from two universal principles: 1) do what you agreed to to do, and 2) do not encroach on other people or their property.

The first principle is the basis of contract law. The second principle is the basis of essential prohibitions against theft, rape, murder, etc.

Mayhew's Higher Law argument resonated with colonial America because many colonists and their ancestors came to America to escape tyranny that had been trampling their Common Law, or natural, rights.

John Adams was among those who felt that the first shot of the American Revolution was not fired at Lexington in 1775, but by Jonathan Mayhew twenty five years prior in his Discourse.

The revolutionaries were doing what Mayhew argued was natural, justified, and predictable. They were enforcing Higher Law.

Kennedy to Retire

Jake Lo: What judge is going to believe that?
Agent Wesley: My judge.
--Rapid Fire

Yesterday, Supreme Court Justice Anthony Kennedy announced that he would retire. Kennedy has often played the role of swing or wildcard voter on high court rulings otherwise divided along predictable ideological lines given the makeup of the other eight supremes. Should his replacement carry more commitment to one of those competing ideologies, then the balance of justice, at least the current high court version, will tilt accordingly.

Because they currently hold enough executive and congressional power to get it done, many on the right are relishing at the spectre of such a rebalancing. Conversely, many on the left are cursing the process that permits a president that they did not support to nominate another judge who could move the court further from progressive sympathy.

The roles would be precisely reversed, of course, if the 2016 presidential election turned out differently.

The frenzy that Kennedy's announcement has already created is but a harbinger of the political theater that will take the stage as the nomination process for a replacement justice unfolds.

As the theater plays out, I will be remembering this. It is unlikely that our founding ancestors fought a bloody revolution to ultimately concentrate so much political power in the hands of nine (or really five) lawyers who are tenured for life.

Unfortunately, when positivism trumps the rule of law, the modern translation of the framer's original design should not be surprising.

Spineless GOP

In violent times
You should have to sell your soul
In black and white
They really, really ought to know
--Tears for Fears

Congressional GOP members revealed their RINO core once again by teaming with Democrats to pass a two year spending deal: H.R. 1892, the Bipartisan Budget Act. The Act promises to elevate annual federal budget deficits north of $1 trillion--a level matched only by the early Obama administration years (Quick quiz: How must such budget deficits be funded? Answer to be discussed in a future post).

A few Republicans (e.g., Rand Paul, Thomas Massie, Justin Amash) held firm. Much of the same crowd that held firm on Obamacare repeal. Some of their pushback that calls out the GOP hypocrisy is captured below.

Sen. Rand Paul on the new senate spending bill: "If you were against President Obama's deficits, and now you're for the Republican deficits, isn't that the very definition of hypocrisy?" https://t.co/EPCvGs13hW pic.twitter.com/24yiMZ7ZqG

— ABC News (@ABC) February 8, 2018

Roll call for the massive spending bill... https://t.co/d66rM7rzPt

— Thomas Massie (@RepThomasMassie) February 9, 2018

This morning, every Republican in Congress who blasted government growth under Pres. Obama gets to answer the following question with his or her vote: Do you oppose massive spending increases only when a Democrat is in the White House?

— Justin Amash (@justinamash) February 9, 2018

Judge Nap follows with this question:

What kind of politicians rail against deficit spending until they are in charge AND THEN SPEND MORE?
I stand with Rand @RandPaul against congressional Republicans who have rejected their core values.

— Judge Napolitano (@Judgenap) February 9, 2018

What kind of politician, your honor? Why, the spineless GOP type, of course.

Repeal Appeal

Second time around
I'm still believing
The words that you said
--Naked Eyes

On the back of Rand Paul's continued strong, outspoken stance and formal thumbs down announcements by several other Republican senators including Mike Lee, the idea of repeal now and discuss replacement later is gaining momentum. President Trump tweeted the following last night:

Republicans should just REPEAL failing ObamaCare now & work on a new Healthcare Plan that will start from a clean slate. Dems will join in!

— Donald J. Trump (@realDonaldTrump) July 18, 2017

Several posts in agreement with Trump, such as this one from VP Mike Pence, followed. Now, Senate Majority Leader Mitch McConnell is turning his hat around:

The #Senate will vote on a repeal of #Obamacare combined w a stable, 2 year transition period as we work toward patient-centered #healthcare

— Leader McConnell (@SenateMajLdr) July 18, 2017

An up or down straight repeal vote of Obamacare seems increasingly likely.

This is what staying the course, prioritizing principle over compromise, and doing as promised can produce.

Hamilton and the Left

Peter Howard: We are citizens of an American nation! And our rights are being threatened by a tyrant three thousand miles away!
Benjamin Martin: Would you tell me please, Mr Howard, why should I trade one tyrant three thousand miles away for three thousand tyrants one mile away? An elected legislature can trample a man's rights as easily as a king can.
--The Patriot

Many people scratch their heads over the Left's affinity for Alexander Hamilton. Hamilton was, after all, one of the vocal framers of the Constitution. He also wrote skeptically, in the Federalist Papers and elsewhere, about a euphemism of leftist rule: democracy.

However, once the Constitution was ratified, Hamilton's actions revealed his true nature--much of which leftists would find naturally appealing. He favored a strong central government and thought the Constitution should be bypassed as necessary by the ruling class. In Hamilton's view, that ruling class should be aristocratic nature. He thought the the president should be granted lifetime tenure and that the powers of the executive branch should be disproportionately large.

As first the first treasury secretary, Hamilton initiated the nation's sovereign debt program and liked the idea of acquiring federal resources on the back of taxpayers. He was fond of central banking and got the First Bank of the United States, a predecessor to today's Federal Reserve, off the ground.

In many ways Hamilton's profile resembles Lincoln's--another authoritarian who leftists love to love.

Real Independence Day?

Benjamin Martin: May I sit with you?
Charlotte Selton: It's a free country. Or at least it will be.
--The Patriot

On July 2, 1776 the Continental Congress voted on a resolution of independence proposed by Virginia statesman Richard Henry Lee a month earlier. The vote passed with 12 states affirmative and one abstention (New York would not be authorized to vote for independence until one week later).

In a letter to his wife, John Adams predicted that the 2nd of July would become a great American holiday. "The Second Day of July 1776, will be the most memorable Epocha, in the history of America," he happily wrote.

However, the draft of a formal declaration of independence, which had been written by the Committee of Five with Thomas Jefferson on point, was still under congressional review. Those changes would not be completed for two more days.

A vote on the declaration document would not take place until July the 4th.

Ignore It

Jake Lo: What judge is going to believe that?
Agent Westey: My judge.
--Rapid Fire

After a district judge in Hawaii once again issued a temporary restraining order on President Donald Trump's revised travel ban, I heard several opinions this week suggesting that Trump should simply ignore the TRO and implement his executive order. If Trump would defy the absurd and ridiculously worded ruling of this judge, then he would be engaging in nullification.

In the context of constitutional law, nullification means ignoring a law or ruling deemed to be unconstitutional. Nullification was frequently employed prior to the Civil War. For example, it was used by states to combat oppressive federal laws such as the Sedition Act of 1798 and the Tariff of Abominations of 1824.

Should Trump choose to ignore the judge's TRO, then his nullification would challenge the legal principle of judicial review. Judicial review is a term concocted by Chief Justice John Marshall in the case of Marbury v. Madison. Judicial review is the power of the Supreme Court and all federal courts to examine statutes and presidential behavior, and to declare them void if found to be inconsistent with the Constitution. Of course, it is debatable whether contemporary judicial review regularly contemplates the constitutionality component.

The concept of judicial review carries some intuitive appeal. Courts should be independent, anti-democratic entities that preserve the constitutional rights of individuals when legislative and executive force intrudes. Viewed in this manner, the Courts are the last line of defense for liberty.

On the other hand, notable individuals such as Thomas Jefferson saw judicial review as an intrusion on liberty. In Jefferson's view, the Supreme Court's opinion on constitutionality should carry no greater weight than the legislative or executive branches, and in fact the Constitution does not grant the Court such interpretive authority. Moreover, Jefferson questioned, did it make sense that the people of the United States would fight a bloody revolution only to put the fate of liberty in the hands of nine (five, really) tenured-for-life judges?

Tom DiLorenzo suggests that we have become such a 'lawyereaucracy' today. Find judges friendly to your point of view and have them issue decrees that institutionalize it and put down dissent. DiLorenzo suggests nullification as a way to counter lawyereaucracy.

As an example of a president defying the Court's wishes, DiLorenzo offers Andew Jackson's veto of the recharter of the Second Bank of the United States. While Jackson's veto was in response to a Congressional bill (not a court order), Chief Justice John Marshall had himself vociferously opined that the central bank was constitutional. In his veto response, Jackson (about half way down) argues that it is the duty of Congress and the Executive to decide on the constitutionality of bills that they introduce and approve, and that the opinion of judges on this matter has no more authority over the other branches than the authority that the other branches have over the Court.

Jackson, further channeling his inner Jefferson, also states, "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears the he will support it as he understands it, and not as it is understood by others."

DiLorenzo suggests that if Donald Trump does defy the district judge's TRO then he would be acting in accordance with his presidential role model.

Elections and Expansion of Power

"And, when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, all the laws being flat?"
--Sir Thomas More (A Man for All Seasons)

Increasingly, presidential elections in America throw groups who supported the losing candidate into panic. The panic includes pointing fingers. The president elect is a marxist or fascist. People who voted for him are uninformed or just plain idiots. The election system is rigged or unfair.

An interesting thing about this phenomenon is that it is bipartisan. For example, eight (and four) years ago, Republicans went into hysteria when Barack Obama was elected. Today, it is Democrats' turn as Donald Trump prepares to take the reigns. Complaints only arise when their side loses.

One way to explain this behavior is that it aligns with social identity theory and the psychology of losing. People tend to identify with groups--sometimes very strongly. They can develop such an psychologically vested interest in their group being superior that, when their group loses or is put down, they cope with cognitive dissonance by blaming others.

Another way to explain it is that there is true reason to be terrified. Today's US president holds far more discretionary power than our founding ancestors intended. That may be ok with you if the person in charge shares your values. But if a sitting president does not like you or the group you belong to, then the nation's chief executive is in a position to trample your rights with, borrowing from the current administration's stated approach to lawlessness, with the stroke of a pen or a phone call.

The anti-federalists foresaw this situation long ago. Marry discretionary rule with democratic election processes, and you were likely to see at some point just what we're living through today.

But the proper source of blame isn't the other guy. It is with us when we support discretionary expansion of presidential powers when it suits our interests. Because, at some point, that discretionary power quite likely will be wielded by someone we don't like and who doesn't like us.

Authoritarianism and Organizational Size

All for freedom and of pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Authoritarian regimes prefer large organizations. A few large organizations are easier to influence and control that are many small organizations.

Stated differently, there are fewer control points.

Free markets promote the opposite. Decisions are decentralized among millions of people voluntarily engaging in cooperative exchange.

Such fragmentation is impossible for bureaucrats to manage. That is why authoritarians despise distributed government designs in which they must share or cede power to many small organizations.

Engaging in Politics

"A shepherd must tend his flock. And at times, fight off the wolves."
--Reverend Oliver (The Patriot)

Politics can be seen as activities associated with gaining control over the strong arm of government for personal purposes. Many people are likely to refrain from engaging in political process. Politics will be seen by many as a non-value added activity, a distraction from what they are interested in doing. Moreover, for those opposed to the use of aggressive force to get one's way, they will likely refrain from political process for ethical reasons.

However, there are some who like the prospect of employing strong armed government agents to advance their interests. These are the people who are likely to engage in political process at an early date. Particularly when political issues are decided by democratic vote, then these political activists hold a distinct advantage. They can marshal majority votes much easier when those who are disinterested in political process stay away from the polls.

Only when forcible intrusion by government challenges preference for liberty will those who dislike politics get involved in the process. Because preference for liberty varies among individuals, we should expect the engagement of those previously disinterested in politics to be gradual--perhaps taking many years or even decades.

Meanwhile, the early activists have gained a distinct edge, having wrested the strong arm of government in their favor. The late engagers are behind the curve. They have done nothing wrong, but their liberty is now being forcibly compromised and they lack political sophistication for reversing their condition via government.

Unless the late engagers are able to peacefully gain control of the political process and reclaim their liberty, then pressure builds in the system for them to forcibly defend themselves.

Localism and Anarchy

When it gets too much
I need to feel your touch
--Bryan Adams

Opposite of nationalism and globalism is localism and anarchy. Localism is the policy of treating one's local area as the proper sphere of political influence. It is marked by preference for products and decisions made in nearby areas. However, rather than being isolated from surrounding communities, localities become inextricably linked, primarily through trade, in order to procure resources to advance prosperity.

Anarchy is localism to the extreme. Anarchy is self rule--people governing themselves. It is marked not by people turning inwards in some anti-social manner. In fact, people must interact routinely in order to survive and prosper.

As anti-federalists and others have long recognized, localism and anarchy are antidotes to statism. The more localized the government, the smaller the state power and the greater the social power.

Dangerous Candidates

"That's right, Ice...Man, I am dangerous."
--Lt Pete "Maverick" Mitchell (Top Gun)

Loyalists from both the Republican and Democratic parties claim that the presidential candidate from the other party is the most dangerous candidate they have ever seen.

Both sides are right.

As state power grows, anyone who benefits from the strong arm of government has much to lose if someone takes charge with the intentions of changing the state's redistributive power. Because Republicans and Democrats both favor more state power, albeit for different (in many cases only slightly different) policy ends, then both sides will naturally feel threatened by the prospect of losing control of the resources sent their way strong armed agents.

The biggest threat, of course, would come from a candidate that promises to dismantle the state entirely, thereby collapsing the benefits enjoyed by either Republican or Democrat principals.

In such case, we would be sure to see establishment Republicans and Democrats unite to condemn that candidate in true 'the enemy of my enemy is my friend' fashion.