Durable Law

"None of us took this city from the Muslims. No Muslim of the great army coming against us was born when this city was lost. We fight over an offence we did not give, against those who were not alive to be offended. What is Jerusalem? Your holy places lie over the Jewish temple that the Romans pulled down. The Muslim places of worship lie over yours. Which is more holy? The wall? The Mosque? The Sepulchre? No one has claim...All have claim!"
--Balian of Ibelin (Kingdom of Heaven)

The Constitution was developed as the supreme law of the land. Some people who oppose it today argue that the Constitution, being developed over 200 years ago, does not apply to them because they were not around to agree to it.

Indeed, in order to be just or legitimate, law requires the consent of the governed.

But how can consent of the governed be achieved in practice? Any law passed today does not have the consent of someone born tomorrow. Moreover, for laws passed by democratic vote, those who vote against the law do not consent either.

It is impossible that any law gains explicit consent of the governed. That being the case, how it it possible that any law can be viewed as legitimate over any length of time?

A law can be legitmately durable if it carries implicit consent. Consent is implied if we can assume that any and all people can agree on a law's legitimacy at any point in time.

The only laws that meet this condition are those grounded in the natural rights of individuals. Natural rights involve the freedom to pursue one's interests without being forced to do otherwise by someone else. All must respect this right, meaning that I can't initiate force to interfere in your pursuits just as you can't violently intervene in mine. Laws based on natural rights are inalienable, meaning that they cannot be legitimately revoked by government.

Laws grounded in natural law prohibit people from initiating force on others. The only legitimate use of force is for self-defense purposes.

It is reasonable to assume that good people, regardless of their position in time, would consent to such a law--i.e., a pledge not to initiate violence on others, and to face legal consequences if violence is initiated on others. Only bad people would not consent to such.

Laws grounded in natural rights form the basis for durable law since they are the only laws to which we can assume that good people would consent to--even if they were not alive when the laws were developed.

Morality vs Utility

"If you take a law like evolution and you make it a crime to teach it in the public schools, tomorrow you can make it a crime to teach it in the private schools. And tomorrow you may make it a crime to read about it. And soon you may ban books and newspapers. And then you may turn Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the mind of man. If you can do one, you can do the other. Because fanaticism and ignorance are forever busy and need feeding. And soon, your honor, with banners flying and with drums beating we'll be marching backward, BACKWARD, through the glorious ages of that Sixteenth Century when bigots burned the man who dared bring enlightenment and intelligence to the human mind!"
--Henry Drummond (Inherit the Wind)

"Don't impose your morality on me," people often warn. Yet those same people rarely hesitate to impose their own versions of morality, be it religious or secular in nature, on others. Thus we have, for example, some seeking to force others to comply with their views of marriage. And we have some seeking to force their views of income leveling on others.

Here is the problem that many people do not seem to grasp. Durable law cannot be formed purely on the basis of morality. Why? Because there is no consensual view on earth about what is morally good.

Instead, the basis for durable law is utility. Utility in this case is the extent to which a law helps all advance their personal interests, whatever those interests and moral backgrounds may be. A law with high utility cannot be reasonably contested. No new 'contract' need be created with future generations who were not around when utilitarian law was created because it is readily apparent to all that it helps individuals move ahead.

There are few principles that form the basis for utilitarian law. In fact, I can only think of one: the principle of non-aggression. Individual interests can advance only when others do not forcibly interfere with other people's lives, wherewithal to produce, and the fruits of production (property).

Individual pursuits are best realized when others do not interfere. From a collective economic standpoint, non-aggression maximizes productivity and wealth creation that provides the basis for higher standard of living.

The principle of non-aggression is the universal code for durable law.

True Law is Not Relative

Stuff that works, stuff that holds up
The kind of stuff you don't hang on the wall
Stuff that's real, stuff you feel
The kind of stuff you reach for when you fall
--Guy Clark

Prior to the start of class one day, I recall a fellow student asking my high school humanities teacher, "Is everything relative?" Raising his eyes in a dry gaze, the teacher replied, "Certainly not."

Progressives like to argue that, because the Constitution was developed in a different era, it is not relevant to modern times. 'Progress' requires governance crafted for today, for situations that the founders did not anticipate.

The Progressive argument is a flavor of positivism, a legal philosophy grounded in the notion that a law is valid if it can be enforced. Law is left to the discretion of the enforcers. Law, according to Progressives, is a relative thing.

But durable law is not relative. Rather, it is grounded in natural law that does not change with the direction of the wind. The founders understood this truth. Their experience with the discretionary rule of England merely validated what they had learned from their study of history.

Their study of Rome included the writings of Cicero, the great defender of the Roman republic and master of political philosophy. Cicero wrote:

"True law is right reason, consonant in nature, spread through all people. Is is constant and eternal...There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by the one eternal and unchangeable law..."

Cicero knew that effective law is timeless.

Reference

Cicero, M.T. "On the Commonwealth." In J.E.G. Zerzel (ed.), On the commonwealth and On the laws. Cambridge: Cambridge University Press, 1999, pp. 71-72.

Jefferson and Judicial Review

Cromwell: I have evidence that Sir Thomas, when he was a judge, accepted bribes.
Duke of Norfolk: What? Goddammit, he was the only judge since Cato who didn't accept bribes! When was there last a Chancellor whose possessions after three years in office totalled one hundred pounds and a gold chain?
--A Man for All Seasons

Interesting talk by Tom DiLorenzo on how the Constitution has been dismanteled over the years. I found the real nugget of this discussion at ~21 minutes on the legitimacy of judicial review.

Judicial review is a principle established from the Marbury v. Madison ruling. It states that the Supreme Court has the power to determine whether a law is constitutional or not. This ruling is typically held up among freedom lovers as wholly consistent with natural law.

Apparently, Thomas Jefferson did not see it that way. Citing an 1819 letter, DiLorenzo notes that Jefferson discounted the Supreme Court's claim of judicial review. Jefferson did not view the Supreme Court's opinion of constitutionality as any more legitimate than that of the legislative or executive branch. Or of the people in the states.

Jefferson viewed the Tenth Amendment as the cornerstone of the Constitution. The Tenth Amendment states that all powers not expressly delegated to the federal government are retained by the people and the states. DiLorenzo suggests that the Jeffersonian view was that it was insanity to rest the interpretation of law on the shoulders of 5 lawyers given lifetime high court appointments. Would the colonists fight a bloody revolution only to put the fate of liberty in the hands of five tenured people on the high court? Particularly when it was well known that courts throughout history had proven themselves generally incapable of remaining disinterested judges of the law?

This is an OUTSTANDING observation. I have long considered the framers' 'assumption' that the high court would provide a last and durable line of defense for the Constitution's limited government design as deeply flawed--with benefit of hindsight, of course.

But perhaps this is because that was not the framers' assumption at all. The Constitution itself does not grant the Supremene Court power to interpret constitutionality. The opinion of chief justice John Marshall (who subsequently demonstrated in his rulings to be partial to the Hamiltonian big government view) in Marbury v. Madison did that.

It can certainly be construed from the Constitution as written that all stakeholders had jurisdiction on what constituted constitutionality (!). And if people in various states felt that law was being unjustly interpreted by the federal government, then it was their right to walk away from the union.

Rather than depending on an interested court, which history suggested would be likely at some point, the people would retain the ultimate power themselves.

Yes, indeed.

Civil Rights Irony

"My old man was so full of hate that he didn't know that being poor was what was killing him."
--Agent Rupert Anderson (Mississippi Burning)

We have noted that there are two primary definitions of equality in the social context. One definition pertains to equal treatment under the law. This definition appears to be the one preferred by the Founders as implied by the country's founding documents. Let's call it the classical definition.

The other definition pertains to equality of income (or economic resources, or opportunities, or living standards). The definition has gained popularity over the past century with the rise of the Progessive movement. So let's call this one the progressive definition.

Not only are these definitions diametrically opposed w.r.t. liberty, but they also conflict in their implications for policy. Policy that is developed on the premise that both definitions of equality can be supported is likely to be confusing and unconstitutional in some manner.

An example of such policy is Public Law 88-352, more commonly known as the Civil Rights Act of 1964. The Civil Rights Act is divided into 11 sections, or 'Titles,' that are intended to address various issues related to discrimination and segregation.

Many sections seem consistent with the classical defintion of equality. Title 1 guarantees equal treatment for all voters. It is sad to think that this policy actually had to be written into civil code--nearly 200 years after the Declaration and Constitution generally guaranteed it in the name of liberty. Sections such as Title 5 related to the desegregation of public schools and Title 6 that prohibits discrimination in federally assisted programs, also seem consistent with the classical definition because they address equal treatment of public (shared) property.

Two sections, however, support the progressive definition of equality. Title 2 prohibits discrimination in places of public accomodation, which is specified to include privately owned businesses. Title 7 mandates 'equal employment opportunity' in hiring practices with the scope again including privately owned businesses. These conflict with the other sections because private property owners and 'protected classes' no longer receive equal treatment under the law. Private property owners are required to surrender property--which includes economic resources as well as the decision rights over them--to other groups (i.e., the 'protected classes'). This is unequal treatment under the law. Property owners are being treated differently than others. Protected classes gain access to resources that are not rightfully theirs.

The central conflict of the competing definitions of equality is well captured in the Civil Rights legislation. It boils down to this: Should the liberty of one group of individuals be infringed upon in order to advance the welfare of another group?

A tangential issue involves how discrimination can be decisively demonstrated. Sadly, most of the remaining sections of the Civil Rights Act of 1964, and well over half the total page count of the PL, are directed towards the establishment of the bureaucracy to oversee enforcement of a highly subjective behavior.

Finally, it must be noted that in truly free markets, chances of persistent discrimination based on race, gender, religion, etc are extremely low. Producers who make bigoted decisions lose customers as well as talented workers to entrepreneurs who recognize the opportunity. Bigoted operations get weaker and disappear.

Bigoted operations are likely to persist when markets are not free. For example, regulations that discourage entrepreneurs from entering a bigoted industry are likely to make discrimantory behavior more durable.

Ironically, regs like those imposed by Public Law 88-352, which raise cost of business thru EEO and compliance programs, are likely to do just that.

Another case of unintended consequence writ large...

Universal Code

It's coming any day now said the captain
It's coming any day now cried the priest
--Bruce Hornsby & the Range

Many people respond with some variation of, "Don't impose your morality on me!" when someone else seeks to use strong arm of government to enact some normative code. These normative codes are based on religious or secular beliefs of what is right and wrong.

Because diversity and variation are axiomatic, it should be expected that some object when others seek to impose beliefs by use of force.

However, there is one code that seems universal--that transcends any particular belief system. This is the code of natural rights. People have the right to dispose of their lives, wherewithal to produce, and their property as they see fit.

Not only are natural rights inalienable as Jefferson observed, but this is the universal code that transcends belief systems and 'social contracts.'

How do we know this? From a humanitarian perspective, this code prohibits the use of offensive force. Force can be used for self-defense purposes only.

From a utilitarian perspective, absent this code, people are busy defending their lives, liberty, and property against attack. While they are doing so, they are not producing. When they are not producing, standard of living does not advance. In fact, standard of living will fall, even collapse, if invasion becomes pervasive enough.

If people want to prosper and do so peacefully, then natural law becomes the one standard that all races, nationalities, religions, generations, et al. should be amenable to.  It forms the basis of durable law.

Liberty vs Democracy

And the men who spurred us on
Sit in judgment of all wrong
They decide
And the shotgun sings the song
--The Who

Consistent with the thread developed on these pages, Prof Williams argues against democracy as an ideal, or even desirable, system for organizing human conduct. The ideal system, as Jefferson observed, is one that upholds man's natural rights to life, liberty, and pursuit of happiness.

Contrary to popular belief, "liberty and democracy are not synonymous and most often are opposites."

Quotes from Madison, Randolph, Adams, and Hamilton clearly demonstrate our founding ancestors' understanding of democracy's threat to freedom. In Federalist #10, for example, Madison observes, "Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."

The proper role of government is to protect man's inalienable rights from invasion--not to infringe upon them. The founders clearly understood that "because the essence of government is force, and force is evil, government should be as small as possible."

Their resulting framework was not a democracy. The design was a federal republic. In fact, the word "democracy" does not appear in our founding documents. Limited powers were enumerated for central government along with a design to check power among the branches.

Changes to the design were not to be made by majority vote. Instead, supermajorities such as 2/3 congressional approval and 3/4 state ratification to pass constitutional amendments were required.

The intent of these measures was to support rule of law--durable law. Not discretionary rule of democracy that changes with the reigning dominant coalition.

Oath to Nothing

"When a man takes an oath, he's holding his own self in his own hands like water, and if he opens his fingers then, he needn't hope to find himself again."
--Sir Thomas More (A Man For All Seasons)

If the supreme law of the land, the Constitution, is subject to myriad interpretations, then it is not law at all. Instead, it becomes a tool of discretionary rule, a tool of positivism.

Acting with pure pretense, people swear an oath to uphold and protect the Constitution, and then subsequently excuse seemingly illegal behavior by claiming, "Well, that is how I interpret the Constitution."

It is an oath to nothing.

To be effective, law must have only one meaning. That meaning must be durable. And that must be understood and acknowledged upfront by those interpreting the law in advance.

Anarchy and Minarchy

"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."
--Benjamin Martin (The Patriot)

Anarchy is self-rule. Anarchy is not lawlessness. It is people ruling themselves with no government intervention.

Minarchy is rule by a formal government of limited (MINimal) scope. Minarchists such as Bastiat confine the proper scope of government to helping individuals protect their interests from aggression by others. This suggests three legitimate roles for minarchical government: to protect individuals from domestic aggressors, to protect the country against foreign invaders, and to provide a judiciary for resolving legal disputes.

The founders sided with minarchy. Jefferson wrote that effective government design helps secure people's natural rights. The framers subsequently crafted a Constitution that defined the limits of central government.

A counter-belief, one voiced by many Antifederalists, is that it is impossible to constrain centralized government to constitutional limitations. Over time, government will find ways to grow beyond its legitimate boundaries. When it does, government becomes aggressor rather than defender.

How would anarchists provide for protection against aggression and for resolving disputes? Rothbard, Block, and others suggest privatizing everything--including police, military, and the courts.

While I understand the rationale, and am more sympathetic to these arguments than previously, I'm not there yet. Privatizing police and military seems plausible. However, it is difficult for me to see privatizing courts. The problem that plagues today's courts is that they are subject to interest and discretion. It is hard to see how that changes with courts in private hands. In fact, it is easy to envision interest and discretion escalating in the private court scenario--due to human tendencies to seek more for less.

It seem more reasonable to ground public courts in natural law rather than in positivism. Ways to do that include employing super-majority or unanimous decision rules when rendering legal opinions (as juries do) that make it harder for factions to flourish, and to encourage processes of nullification and secession when confronted with judicial activism.

The law, it seems to me, is one thing that must remain public (side note: the origins of the word "republic" come from Latin concepts of "public thing" or "public matter").

That said, I am increasingly sympathetic to the possibility that the anarchists may be correct. It may be practically impossible to restrain the State's hunger for power. And to be sure, minarchist designs have not been durable throughout history.

Of course, anarchical designs have been less durable yet.

Bench Jockeying

How many years can some people exist
Before they're allowed to be free?
How many times can a man turn his head
And pretend that he just doesn't see?
--Bob Dylan

After Justice Scalia's sudden death, attention turns to who his successor will be. As always, it will be a battle between natural law and positivism. Opinions of judges grounded in natural law are durable. Opinions of judges grounded in positivism are discretionary--they blow with the wind.

Special interests favor positivist judges. Special interests realize that the keys to the vault often rest with the Court. Appoint a friendly and special interests have a Court ruling to mobilize strong armed government agents in their favor.

All under pretense of 'the law.'

Which side will win this battle? The answer, my friends, is likely blowin' in the wind.

Progressivism, Finality, and Truth

"You can't handle the truth!"
--Col Nathan Jessup (A Few Good Men)

On July 5th, 1926, President Calvin Coolidge delivered a speech in Philadelphia to mark the 150th anniversary of the signing of the Declaration of Independence. Coolidge demonstrates an understanding of the historical context of this country's founding that few modern presidents have matched. Among the documents that I would like to share and discuss with the young, this would certainly be one of them.

About three quarters of the way down, Coolidge addresses the common Progressive argument, one amplified during the Wilson administration, that, because the world has seen much advancement since 1776, the conclusions reached by those who founded the country, and the laws upon which those conclusions were based, are no longer relevant. Instead, the Progressive argument goes, those outdated ideas should be replaced by something more modern.

Coolidge argues that such reasoning does not apply to to the Declaration because, unlike technological advancements that render prior designs obsolete, the Declaration contains discoveries about natural law that are final and don't change with the wind. If man concludes that all people are created equal, then that is final. If they are endowed with inalienable rights, then that is final. If government derives just power from the consent of the governed, then that is final.

No advance or progress can be made beyond those propositions. Those wishing to deny the soundness of these propositions do not advance forward, but backward to a time when there was no recognition of equality, individual rights, or self rule. Those wishing to proceed backward are not more modern, but more ancient.

What Coolidge is saying is that the Declaration expresses several important findings in man's pursuit of truth. Truth that is durable is final.

Backing away from the propositions of the Declaration equates to backing away from durable truth.

European Disunion

There's a room where the light won't find you
Holding hands while
The walls come tumbling down
When they do, we'll be right behind you
--Tears for Fears

Columbia professor Joseph Stiglitz is among the more vocal US economists with a socialist bent (I rank him up there with Paul Krugman of Harvard and Brad DeLong of Cal Berkeley). Stiglitz has long been an admirer of the 'social democracy' approach of Europe and, like many US 'intellectuals,' seems to think that we should move toward a similar model.

It appears that the problems now facing the European Union are even giving Dr Stiglitz cause for pause.

In past missives we've suggested the headwinds facing the EU. Expecting durable monetary and fiscal unity among sovereign nations with diverse needs and interests seems horribly flawed from the outset on a natural law basis. Blend in the underlying producitivity lowering and debt generating socialistic economic models of the sovereigns and you have a recipe for down-the-road fracture.

A decade or so later, it appears that we may be down the road.

Wrong Rights and Real Bubbles

"Who's the more foolish? The fool, or the fool that follows him?"
--Obi-Wan Kenobi (Star Wars)

This president has made some laughable comments, but some recent ones are among his most ludicrous. He appears to be engaging in the classic propaganda tactic of linking terms that garner people's sympathies with wrong meanings in hope that, over time, people will reassign the wrong meaning to the term.

For example, in his weekly radio address last weekend that featured comments on his floundering Affordable Care Act, he proclaimed that "in the United States of America, health insurance isn't a privilege - it is your right."

Correctly defined, a right is something that simultaneously exists among all people and imposes no obligation on another - except that of non-interference. Americans are particularly sympathetic to the concept of rights through the writings of Jefferson and others who observed that rights come from our Creators or from nature rather than from government, and that government cannot legitimately revoke these rights (i.e., they are inalienable).

The 'right' that the president speaks of is not a right but indeed a privilege - a privilege that only government can provide by forcibly take resources from some for the benefit of others. People are treated unequally under the law in order to achieve some faction's vision of equally of condition. There is nothing natural or durable about this privilege as it could, as the president correctly observed in his speech, be revoked by a different regime that manages to get control of government's strong arm.

The president has also been voicing concern about financial bubbles in his recent speeches. On the surface, this is commendable. Once again, however, he appears to be appealing to people's capacity for fast rather than slow thinking in order to push an agenda.

For example, in a recent speech, he noted, "When wealth concentrates at the very top, it can inflate unstable bubbles that threaten the economy." He coupled this with comments that narrowing the gap between rich and poor is "my highest priority."

As these pages have observed many times, income inequality, while being an essential feature of a thriving economic system, is driven to unnatural extremes by interventionary policy. This president has overseen policies that have widened, not narrowed, the divide.

Concentration of wealth does not inflate financial bubbles. But wealth can become more concentrated as a consequence of government policies that do blow bubble.

Mr Obama is presiding over policies that are and always have been at the root of bubble creation.

This president wants you to believe that he opposes financial bubbles and income disparity while in reality he has been a major architect of both.

Neutral Rules

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

Prof Williams discusses the notion of neutral rules as they pertain to the law. Neutral rules are the kind of rules you would be ok with even if your worst enemy was in charge of enforcing them. As such, neutral rules are agreeable to all. They are known and durable.

Rules that are not neutral are 'living' and can be adjusted on the fly by governing officials. Once the discretionary rule-making power of those officials is recognized, people will concentrate their energy on lobbying, bribing, or other forms of influence to get the officials to tilt the rules in their favor.

Imagine the betterment if we demanded that Supreme Court justices, instead of playing favorites, returned to being arbiters of neutral rules.