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Words and the modern candidate

September 27, 2016

The first presidential debate of the 2016 US election took place last night, and the transcripts are worth looking at for what they reveal about how language is used in American politics.

In an era of government expansion and distrust, the word “reform” was used just twice, both times by Clinton in reference to local police reform only. “Rights” were invoked four times, twice to describe the public’s entitlement to see Trump’s tax returns, and once by Trump himself when he opposed gun rights for anyone who had been arbitrarily placed on a government watch list. The fourth instance was the only general use of the word, when Clinton referred to the rights of young men in minority neighborhoods. The phrase “human rights” was not spoken once during the debate, nor was the word “freedom”. Even “free” was used a mere three times, twice to refer to college and once when Clinton was encouraging Trump to release his taxes. And as for “free market”, “liberty”, “individual”, “decriminalize”, “legalize”, “independent”, “reason”, or “logic”, not a single one of those terms appeared in thirty-six pages of text.

By contrast, the way in which both candidates favored antonyms for the above words was so marked as to seem almost jingoistic. To set a pessimistic tone, some variant of the word “lose” was employed thirteen times. “Disaster” showed up in six places, “mess” in seven, and “attack” in eleven. Counterpoint to these was provided by the use of “security” on four occasions and “military” on five. “Law” was called upon seventeen times, during eight of which it was used as part of the phrase “law and order”. “War” or “warfare” was mentioned even more often: nineteen times. “Company” or “corporation” and their variants were repeated thirty-three times. “Community” saw twenty-six uses, and while the singular “person” was only used six times, the plural “people” showed up in sixty-six instances. “America” was appealed to forty-eight different times, and “country” sixty-four.

It is not necessary to read the way in which these words were strung together in order to understand their meaning. Freedom, human rights, and individuals are clearly of little importance to either candidate, while the power to suppress discord in the state and the welfare of the group are paramount for both of them, as evidenced by their hundreds of uses of plurals. But the welfare of the group only as they understand it; democracy, representation, due process, habeas corpus, and republicanism were other terms notably absent from the debate. Apparently the language of political discourse in the United States no longer includes the concepts of inherent rights or limited government. And how can reform, let alone revolution, emerge among a population that has forgotten the very words in which reform and revolution must be expressed?

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Not quite unconstitutional

September 24, 2016

On September 2, the Huffington Post published an article on the National Defense Authorization Act which stated that Section 1021 of the NDAA “is a direct violation of the U.S. Constitution and our Bill of Rights”, on the grounds that it improperly abrogates the right of habeas corpus. This is inaccurate.

The principle of habeas corpus in American law is defined by Article One, Section Nine of the Constitution, which sets out additional powers of Congress. The clause in question reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In other words, habeas corpus may be legally set aside at any time that the government can construct a superficially plausible case for doing so.

The writ of habeas corpus was first suspended by President Lincoln in April of 1861, an action that was overturned by the US Circuit Court in Ex Parte Merryman, which ruled that only Congress could enact such a suspension. Lincoln ignored the ruling and repeated his previous actions in September of the following year, and in the spring of 1863, Congress passed the Habeas Corpus Suspension Act, authorizing Lincoln to suspend habeas corpus “whenever in his judgment the public safety may require it” for the duration of the war. Although this permission expired with the end of the Civil War in 1865, Congress included provisions for the suspension of habeas corpus in the Second Enforcement Act of 1871. Neither piece of legislation has ever been ruled unconstitutional, nor has the Merryman decision been overturned. All remain valid precedents and clearly establish that Congress may legally terminate habeas corpus at will. The NDAA is merely a new example of an old exercise of powers.

The real problem here is not the NDAA, but the wording of the Constitution. Like much of the later Bill of Rights, the protection of habeas corpus is phrased as something that Congress is obliged to do or not do. It is not guaranteed as a basic human right, above the law and therefore immune from tampering. The looseness of the wording, and the reluctance of the Constitution’s authors to firmly protect the rights they had declared “inalienable” a decade earlier, are more to blame for present abuses than are the legislators of today. For that matter, so are the members of the 37th Congress. If they had not showed the way, the 112th Congress would have had no precedent to rely upon in making such a sweeping change to the American legal system.

One final note. While the NDAA passed the House by a vote of 283-136 and the Senate 86-13, it would require as few as 110 votes in the House and 26 votes in the Senate (50% plus one of a quorum) to pass any additional legislation expanding the suspension of habeas corpus. Add the President to sign the bill into law, and that makes a total of just 137 people. That’s all it would take to set aside one of the fundamental principles of American justice without ever violating the law.

And that’s why people who want civil rights protections should make sure that they close the loopholes in their constitution.

No place for truth

August 1, 2016

While Germany continues to be criticized by proponents of free speech for its laws criminalizing Holocaust denial, it is far from being a lone offender in this regard. Austria, Belgium, the Czech Republic, France, Greece, Italy, Lithuania, Luxembourg, Poland, Romania, and Russia – in other words, most of Europe – have similar laws on the statute books, to say nothing of countries like Switzerland and the Netherlands, which also prosecute the offense under more general provisions prohibiting hate speech or the defense of genocide. The Council of Europe and the United Nations have upheld these laws over protests that they are both an offense against human rights and a concession to Nazism, thereby privileging stability and order over personal liberty.

However, the true danger inherent in Holocaust denial laws is not their restriction of speech and expression, but rather the relationship that they establish between the state and objective truth. The Holocaust happened, the German government (and that of Austria, Belgium, etc.) declares. It is an historical fact. Therefore, it cannot be questioned, and to attempt to do so is a crime. With the passage of such laws, the state moves from its role as an arbiter of subjective knowledge into that of a selector of objective knowledge. And once the state has chosen its truth of choice, civil rights disappear altogether instead of simply being limited, because, the state can argue, no one has the right to declare what is obviously and verifiably untrue without punishment.

The hazard is compounded by the manner in which the state selects objective truth. It does not do so on its own; instead, it relies on the consensus of scholars and experts. Historians overwhelmingly assert the reality of the Holocaust; therefore, the German government (and Austria, Belgium, etc.) follows their lead. It would be unlikely to fly in the face of public opinion and promote an improbable truth. As the experts say, so the state does.

Suppose the same standard were applied in the United States with regard to another political issue on which there is near-total scholarly consensus: global warming. Although a substantial minority of Americans question whether it exists at all, the scientific community is vocal in asserting that it does. If the state were to adopt the position that scientific truth would be enforced as law, it would negate the value of all debate on the subject, of which there is a considerable amount. Truth is protected, state authorities would say, and just as the right of free speech is not interpreted to protect libel or slander, so they would argue that it does not protect objection to widely recognized facts.  Nor is it deemed to shield speech which is an imminent danger to others.

A similar dissonance is taking place in the United Kingdom at the moment, where academics and writers are decrying the decision of the electorate to leave the European Union. “Too much democracy!” they cry, and go on to say that elites are required in order to save democracy from itself. The popular voice must be moderated by the widsom of Those Who Know, regardless of what effect that has on human rights.

But if objective truth, so far as man can perceive it, is to become identical with the law, the power of those who determine what truth is would be enhanced almost beyond limitation. In this regard, the role and power of the psychiatric community is even more important than that of the pure scientists. For example, psychiatrists protest that those individuals who have been diagnosed with mental disorders should not be permitted to own weapons; what happens if they declare a liking for weapons to be itself a mental disorder, so that a desire becomes its own condemnation? Or a rejection of the scientific consensus on global warming, since only an insane man would ignore the reality of the world around him. Or opposition to universal healthcare, since the sure sign of an ill man is that he doesn’t believe himself to be ill and declines treatment. These positions, of course, are all progressive ones, chosen because it has been political and social progressives who have been most vocal in their insistence that the law must follow knowledge. However, their fundamental demand is intensely conservative: a legislated standard of belief against which behavior can be measured, so that irrational behavior can be determined and dealt with by extra-legal means.

For thousands of years, cynics have said that truth has no place in politics. It is in the best interest of the individual for him to ensure that things stay that way.

Disembodiment

July 19, 2016

Since a corporation is not a human being, it has no human rights that can be violated through regulation or taxation.

But do not restrictions imposed on a corporation also restrict the activities of individuals?  Not unless they are explicitly written to apply to individuals as well as corporations.  And if they are not so written, a man may do business on his own account without limitation even while corporations are being strangled by regulation.  He may collaborate with partners, or even with the general public in an informal association.  There is nothing a corporation can do that he cannot do as well, except perhaps that it may grow larger, richer, and more powerful than his business ever will.

Economics are only the proximate cause of the corporation’s power in the twenty-first century.  The ultimate cause is the special treatment accorded by the state to a relatively small number of individuals and businesses in allowing them to form corporations in the first place.  Because of the ways in which corporations may evade taxes, pay nominal tax on only a tiny portion of their income, protect their owners and officers from liability and prosecution, and so on, they are not merely an alternative form of business organization, but a way of privileging certain individuals above others.  The corporation, like currency, is by its very existence a form of artificial interference with market forces.

This interference arises from the way in which the corporation, while only a conceptual entity, is permitted to behave as if it were a human being exempted from many of the laws that govern the actions of individuals.  Take away that permission – again a benefit granted and enforced by the state – and draw a firm line between the personal and the conceptual, and the advantages of the corporation as a business structure disappear.  As it is only a concept, a corporation has no right to special treatment in any case.  Nor do its owners by virtue of their ownership.  To deprive them of the benefits of incorporation would only be to place them on an equal footing, as individuals, with the rest of humanity.  Abolishing the corporation, or squeezing it out of existence, is a validation of human rights and marks a weakening rather than a strengthening of state authority.

The color of freedom

July 10, 2016

What is the function of a policeman? To enforce the law. What is the law? A set of behavioral restrictions imposed on individuals. It doesn’t particularly matter who creates the laws; the key point to remember is that they exist as limitations on the free will of the individual.

Von Clausewitz defines war as “an act of force to compel your enemy to do your will.” But who is your enemy? If he is one who must be forced to do your will, then it follows that he is one who opposes your will to begin with.

Consequently, if a policeman’s job is to enforce limitations on your will, it is logical to conclude that he is your enemy. Certainly he can’t prevent you from committing a crime. But after you have done so, he can ensure that you are imprisoned and tortured in a form of abstract and impersonal revenge. Unless you are a dedicated masochist, that is probably not your desired outcome. If you were speeding on the highway, you probably have somewhere you need to be; if you are snorting cocaine, you would like to enjoy the high; if you’ve killed someone, it was because you expected to enjoy the state of affairs resulting from their death. The intrusion of a policeman into any of these situations is a form of opposition to your will, and that makes him your enemy.

This conclusion is not contingent on a specific scenario, or on the behavior of some or all policemen. It doesn’t matter if they’ve ever killed or not. It doesn’t matter if they’re fair, or honest, or trustworthy. It doesn’t matter if they’re violent thugs or dedicated public servants. Merely by donning a badge and taking an oath to uphold the law, merely by existing in their role as potential opposers of individual freedom of action, they become enemies of human rights and therefore of humanity. How, then, can their actions be defended, when their presence itself, even as a concept, is a danger to the individual? And their presence is never only conceptual. It is a very real threat that directly influences human behavior. The man considering whether or not he will commit a crime is forced to take into account the likelihood of police interference with his actions, and he alters them accordingly. Without doing anything other than existing, the police have interfered with his free exercise of his will.

A policeman might attempt to justify his actions by saying that some freedoms must be restricted in order to preserve others. By doing so, he is tacitly admitting that he is engaged in the business of limiting freedom – period. But the nature of ideal freedom is that it is limited only by man’s capacity for action. If something can be done, humanity is free to do it. Those who attempt to prevent human beings from exercising this capacity are their enemies. The reasoning is clear enough.

Blue is not the color of freedom.

The President and the pear

May 21, 2016

Suppose that all legislative and executive authority in the United States were consolidated into the person of the President, so that he became in effect an absolute monarch.  And suppose that this particular President hated pears.  Hated them with a fanatical, unreasoning passion.  Naturally, one of his first acts would be to outlaw growing or eating pears.  He could even impose capital sentences on anyone caught eating a pear in public if he liked, lest they spread the contagion to the rest of the population.

But he would be disappointed by the results of his fiat.  People would go on eating and growing and selling and buying pears.  No one would be brought up before a judge or jury accused of public pear-eating, and no human rights advocates would spring up to defend the pear-eaters.  It wouldn’t be considered necessary.  Why would the President fail in his quest to stamp out the horrors of the pear from civilized society?

Because by the compression of the entire executive branch of government into himself, all those with the power to enforce the laws he made would have vanished.  He would have no PEA (Pear Enforcement Agency) agents to investigate or arrest pear-eaters, no prosecutors to present a case against them in court, no officers to shepherd them from the dock to the execution chair, no wardens or jailers to hold them in prison, no excisemen to extract fines from them, no soldiers to patrol the streets looking for them.  Without a civil service, no law he made could be executed unless he himself, as Chief Executive, put it into operation.  And so the pear-eaters would go free.

True, if he were walking down the street, and crossed paths with a man eating a pear, he would have the undeniable legal authority to arrest or shoot the pear-eater if he felt like it.  But he would have to do so himself.  He couldn’t merely beckon and have someone a thousand miles away do the dirty work, as if he were the central figure in Rousseau’s mandarin paradox.  Under those circumstances, he would have to weigh the possible results of his actions.  If he could kill the pear-eater, but the pear-eater’s wife was standing behind her husband and would immediately strangle the President in retaliation, would it be worth the satisfaction he would get from the pear-eater’s demise?  Remember that all the executive civil service was previously collapsed into himself.  He would have no Secret Service men to jump to his defense.  It would be his wits and strength against those of his fellow citizens if he chose to enrage the latter.

Given his situation, the President would most probably allow the pear-eater to go on his way with a glance of loathing.

The moral of the tale?  The most vicious law is harmless if the means to enforce it are lacking, and the man who is not shielded from the consequences of his actions is circumspect.

Freedom from confusion

May 12, 2016

The backlash over North Carolina’s new anti-anti-discrimination law, HB2, has increased considerably over the past few weeks. Major corporations are pulling their operations out of the state or canceling expansion plans. Film productions have moved elsewhere. Musicians, including some hitherto regarded as being staples of the red right, have canceled their appearances. Even a legislator who voted for the bill has since publicly reversed his position. The popular consensus appears to be that the law is a deliberate affront to LGBT individuals by permitting them to be denied services on the basis of their sexual orientation if the business providing those services wishes to do so.

As usual, consensus does not imply unanimity. The boycotts have generated their own wave of criticism, ranging from complaints that it is undemocratic to attempt to interfere with a law passed by the majority consent of elected representatives to comparisons with attaching sanctions to dictatorships, as actions that will only harm and inconvenience an innocent population without affecting the state’s policy.

All commentary on the situation so far has missed the two main issues at hand. The first is the question of why there is a need for such a “protective” law in the first place. It goes without saying that any individual or business has the right to refuse service to any potential customer for any reason. To require a man, as the price of the existence of his business or the cost of freedom from penalty, to serve another against his will approaches dangerously close to the condition of involuntary servitude which is forbidden alike by the US Constitution, the tenets of classical liberalism, and the ideals of modern secular democracy.  In fact, the definition of forced labor used by the Department of Justice defines it as “threat of serious harm or physical restraint.”  A hate crimes law that imposed fines or imprisonment on businesses and individuals who refused to serve certain customers would certainly count as a threat of serious harm.  And yet an apparently large number of people who would normally consider themselves ardent opponents of wage slavery, human trafficking, and abuse of the justice system would now like to make just such a threat against their fellow citizens – because their opinions on customer service don’t coincide with their own.  Freedom of choice, it seems, cannot be permitted where that choice might harm someone, or where it’s just plain wrong.

The second, and more important question at stake, is that raised by the criticism of the boycotts. Their critics fail to see that this uncomfortable, chaotic situation exemplifies the way a free society should operate. Has the business a right to discriminate? Yes. Has the disappointed customer the right to retaliate against the business for that discrimination? Also yes. Neither side has more rights than the other, and when there is a conflict between them, it is normal and healthy for it to be fought out until they reach a conclusion. In that way the rights of both parties are respected, and criticism of their conflict becomes, in effect, criticism of their human rights.