Monthly Archives: August 2006

The Right To Privacy

One of the most contentious bits of Constitutional jurisprudence in history has been the “Right to Privacy”. Some say it’s not there at all, as the word “privacy” never even appears in the document. Some say it flows out of penumbras, formed by emanations. I wish I had a clue what the heck that means. The real answer is much, much simpler, but if followed, throws the whole system on its ear. That answer flows straight out of the idea of Natural Rights, and is expressed by a portion of the Constitution that is roundly ignored, the Ninth Amendment:

Amendment IX – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, without an enumeration, it is difficult to understand exactly what sort of rights are protected by the Ninth Amendment. Is a “Right to Privacy” hiding in there? How about a “Right to Polygamy”? Perhaps a “Right to Animal Sacrafice”? Who knows what we might find in there? Could this possibly have been what the Founders intended?

I think it is. The Ninth Amendment, coupled with the Tenth, the Constitutional framework of listing enumerated governmental powers, and later the inclusion of the Fourteenth Amendment, is meant to convey a very specific idea. Where the Constitution has given the government the power to act, it may act, within certain limits. Where the government does not have the power to act, the people are free to exercise their liberty without intrusion.

Perhaps it would be best to start at the beginning. The Ninth Amendment was written as a part of the Bill of Rights in general. At the time of the Founding, many suggested that we did not need a bill of rights, in that the government’s powers were limited. But James Madison, father of the Constitution, did not agree:

It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments.

Would it be right for our government, in response to the enumerated power of punishing counterfeiting of currency, to ban freedom of the press? It would not be necessary, but if Congress is both the writer of the laws and the judge of necessity, the protection against Congressional overreach is not there. The Bill of Rights is intended as a second line of defense against the evisceration of the necessary and proper clause. But there is a problem whenever you enumerate a specific bill of rights, which Madison clearly understood:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

The clause he mentions, which clearly was the precursor to the Ninth.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It is clear that the Constitution was written with several lines of defense against giving the government wide powers. It is also clear that the constitution was written to further restrict the latitude of government’s action even when performing their enumerated powers. The Ninth Amendment was intended as one of these second lines of defense to protect individual liberties (natural rights) not expressed in the previous amendments.

Every one of those lines of defense have been breached, and the government has stopped considering most limits on its power. The Supreme Court has been complicit, and instead of acting to guard our rights, has granted the government the benefit of the doubt, or a presumption of constitutionality, to its actions. The presumption of constitutionality means that instead of requiring the government to prove that restricting our liberties is required to enforce a law is “necessary and proper” to the operation of an enumerated power, it is the citizen’s responsibility to show that the legislation encroaches upon an enumerated right in the Bill of Rights, or encroaching on one of those penumbras, formed by emanations, that the Supreme Court has deemed a “fundamental” right. The Ninth Amendment is ignored.

The Supreme Court has become the arbiter to pick and choose which rights are fundamental, and considers only those rights to be safe from government’s power. Even so, they have eviscerated some enumerated rights, by not striking down certain portions of McCain-Feingold, by holding the 2nd Amendment to be “non-incorporated” by the 14th, and in their decision to ignore private property rights against the abuse of eminent domain in Kelo. Kelo is a key example of the presumption of constitutionality, in that the Court simply take the local government’s word for the fact that the takings met the standard of “public use”.

The Right to Privacy is something that the current court has considered as an exception to the presumption of constitutionality. Due to current jurisprudence, however, to affirm the Ninth Amendment, and the reasoning behind its inception, would be affirming a much wider level of liberty and a much more narrow grant of government power than our current government recognizes. Thus, they must rest on the idea of “penumbras, formed by emanations”, resting on the first, third, fourth, fifth, ninth, and fourteenth amendments. They cannot claim that the government doesn’t have the power to make an infringement of liberty in this sense, they must craft a “new” fundamental right to protect a liberty they support. Their desire to maintain the presumption of constitutionality while still enforcing their desired social goals puts them in a very precarious position, and the house of cards that is our Constitutional jurisprudence gets one story taller.

There is another way, though. I was recently reading— a major impetus for this post, actually— Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty. In it, he argues that through the evisceration of the necessary and proper clause, the privileges and immunities clause, the interstate commerce clause, and then the Ninth Amendment, we have strayed far from the original intent of the Constitution, and have found ourselves with a toothless document filled with holes. The suggest to reverse course would be to return to the days when we presume that the government cannot infringe upon liberty UNLESS they demonstrate that to do so is both necessary (not “convenient” but necessary) and proper (in the service of an enumerated power). Instead of a presumption of constitutionality, we should return to a Presumption of Liberty.

The Founding Fathers certainly believed in a Right to Privacy, insofar as they didn’t believe the government had a legitimate purpose to be doing anything which might infringe upon it. In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception at all, it would be would be the standard.

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An Unlikely Lesson

I grew up in New Jersey, and one of the lessons I soon learned by the time I was old enough to drive a car was just how screwed-up the automobile insurance business in that state actually was. For the longest time, New Jersey ranked as one of the states that exercised the most control over how auto insurance companies could operate. Most significantly, rates were regulated tightly and subject to approval by state bureaucrats. Despite these regulations, or, rather, because of them, New Jersey consistently had the highest automobile insurance premium rates in the nation.
Several years ago, though, the political leaders in the state had an amazing idea…..why not let the market for automobile insurance work without government insurance ? The results, as even the New York Times admits, are really quite interesting:

Joseph Alfano, who works for an office supply company in Clifton, N.J., got a pleasant surprise when he renewed his car insurance this summer. The premium on his 1997 Mercury Mountaineer dropped nearly 30 percent, to $1,273 a year.

It went down almost $500,” Mr. Alfano said. “That’s significant money.”

Mr. Alfano’s good fortune is common these days in New Jersey. For the first time in decades, prices for coverage are falling in the state and insurance companies are fighting for drivers’ business. Roadside billboards cry out with special deals; radio and television are peppered with car insurance advertisements.

It is a mammoth change in a state where auto insurance has been a long-running nightmare and it puts New Jersey in line with auto insurance practices in most of the country.
More tellingly, it provides a case study in what happens when competitive forces are unleashed and markets are allowed to operate more freely. And while some drivers are worse off, the vast majority of consumers have gained from the changes.

Basically, what happened is that, starting about three years ago, New Jersey lawmakers finally began unraveling the complex regulations that governed how automobile insurance companies could do business in the state and allowed them to set their own rates and compete on their own terms.

Insurance regulators say more than 75 percent of New Jersey’s drivers are now paying less for auto insurance and that further reductions are expected.

Auto insurance prices have been declining around the country, as fewer accidents have been reported and big inroads have been made against fraudulent auto insurance claims. But nowhere are prices falling as sharply as in New Jersey. And insurance experts say that the easing of regulation in New Jersey has been by far the most important factor.

Most important among the changes that have resulted from the relaxing of the insurance regulations is an increase in competition. In the past, citizens of New Jersey suffered largely because many insurers (the most prominent of those being Geico) simply chose to stop doing business in the state rather than deal with the regulations coming out of Trenton. With those regulations gone, that’s changing:

With nearly 20 new companies doing business in New Jersey — introducing much more variation in price and service levels among insurers — nearly a third of the state’s three million drivers have switched carriers. Geico, the most successful of the new companies, said that it had signed up the drivers of more than 500,000 cars and trucks since it began operating in New Jersey two years ago.

This certainly isn’t a surprising result when one considers how things worked under the old system:

[R]egulators made it more difficult for insurers to raise rates. One consequence was that in good years insurers held off from requesting lower rates for fear that when their fortunes turned, they would not be permitted to reverse the process.

At the same time, because the rates were capped and insurers were required to provide coverage to all but the most horrendous drivers, the companies said they were often selling insurance at less than their estimated costs. The more coverage they sold, the insurers contended, the more money they lost. So they tried to keep good old customers, but avoided new ones. They often let their phones ring off the hook.

To keep rates tolerable in cities like Newark and Camden where auto accidents were more common and theft was rampant, state officials permitted insurers to compensate by increasing prices more in the suburbs. But to avoid selling to higher- risk drivers, insurers operated few agencies in the cities and set limits on how many policies agents could sell.

One of the biggest shocks I had when I moved from New Jersey to Virginia 16 years ago was the astronomical difference in auto insurance premiums. If nothing else, it made plain the true cost of government intervention in the market. The fact that it’s taken this long for the citizens of the Garden State to be liberated from auto insurance socialism is, quite honestly, a travesty.

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The Infallibility of Government

Originally posted in Feb 2005 at The Unrepentant Individual


“The government should fix that!”

“The government should pay for that!”

“How could the government let that happen?!”

All statements and questions that we frequently hear in our society. We have grown into a myth that the government is a benevolent and all-powerful force in this country. We have more faith in government to be good than Catholics have in the Pope. We trust, despite endless evidence to the contrary, that government not only can, but will come in and fix the problems that we face.

When corporations or individuals go wrong, people assume that it’s just because they’re naturally self-interested and evil. When the government does wrong, the perpetrators get a pass, because they were just acting in the peoples’ best interest. How it is that we demonize the people who have earned their positions of power, while exalting those who have simply been “elected” or “appointed” to positions of much wider power, is simply beyond me.

I’ve often asked myself why people have such faith in the government. Scott Scheule, posting at Catallarchy, in an impressively insightful write-up, posits that it is due to a sampling bias:

The only time the federal government steps in is when the States or market do something wrong. People don’t hound the government when the market is working, and citizens don’t write their Congressmen when the fifty States are doing the right thing, all in their fifty different ways. If it ain’t broke, then why subsidize it?

So, I suggest that it is only when markets and sovereign States err that the ire of people is aroused to such a level that the federal government acts.

The result of this is that the federal government develops an illusion of heroism (legitimacy?), a deus ex machina to swoop down from above to integrate schools, sue tobacco companies, protect the environment, free slaves, and all those other marvelous things you learned about in history class if you went to public school. Thousands of politicians cloak and reinforce this bias; they are rationally of course quite willing to take as much responsibility as they can for being saviors–their reelection depends on it.

For 200 years, the government has been the one stepping in, with much fanfare and hoopla. No mention has ever been made to go back ten or twenty years later, to make sure that they had solved the problem and not created any new ones. Likewise, once a government “solution” has taken hold, there is always the reminder of the initial problem brought up when the proposal is made to remove the solution.

This is made even worse by the fact that so much of government’s cost is hidden. People have a much easier time ending a benefit when they realize they’re paying way too much for it. As I mentioned in my post on tax withholding, we rarely ask ourselves how much we are truly paying for the services of government. When taxes are withheld and you get a small refund at the end of the year, tax rates and the effects of regulations are an abstraction. “The government’s money” no longer registers in your mind as having come from your own wallet.

So what’s the answer? Unfortunately, I can’t say that I know. But at least now we have begun to identify the problem. If we can convince people how badly the government is doing their job (see: IRS, immigration, postal service, Amtrak, Department of Education, Agriculture, FBI, CIA, Social Security, Medicare, etc etc), and then explain what these “services” cost (end withholding and simplify the tax code), maybe we’ll see some real change.

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Thank you, Mr. Governor

An open letter to Gov. Schwarzenegger:

Mr. Governor,

I thank you for making my life harder. By allowing a minimum wage increase, you are ensuring that my money, as well as the money of every other Californian, will buy me less. Fortunately, I don’t have to worry about much, since I’m not in the unenviable position of deciding between food, rent, and medicine. There are many in California who are in that position. You’ve just made their lives harder as well. You’ve made their food more expensive. You’ve made their medicine more expensive.

You are probably wondering how you’ve done this, aren’t you? Well, by capriciously deciding that the labor of minimum wage earners should be worth more, you’re sending ripples throughout the entire economy. You’ve forced business to pay more for the same thing. Who will bear the cost of this? Business, you say? Where is business going to get the money to pay for this? You don’t know, do you? You think that they’re just going to make less profit? As we all know from listening to the media, every business has plenty of extra profits to just spread around. Well Governor, I thought you’d be a little smarter than the second-rate socialists masquerading as our State Senators and Representitives. Apparently, you’re not.

Or, maybe you are smarter than they, and you do know that the citizens of California will end up paying for this, but you think that appeasing the left is worth the price. Either way, please open your eyes. You say you will stand up for the working people of California. Then do so. Stand up for us by not making us pay the price for feel good measures like minimum wage increases. Don’t make them pay more for food, medicine, gasoline, and everything else. You see, we are the ones who will pay this new minimum wage. Not businesses. We, the working Californians, are the reason most of the businesses here exist. They serve us because we pay them to. Now we will be paying more for their services. Can we look forward to another ten cents a gallon, another dollar per movie ticket, another quarter per loaf of bread because of this abomination? Absolutely.

The economy, as much as it can be viewed as a single entity, is a vast matrix of transactions based on worth. If you distort some of those decisions through the force of law, the people making other decisions will make them differently in reaction. The supermarket owner who has to pay employees $1.25 per hour more will raise the prices of his products to adjust, or he might fire an employee. Either way, the effects of this decision will ripple through the matrix and the whole will find a balance acceptable to those making the decisions. The force of law is not enough to overpower the judgement of millions of people acting in their own interests; it will never be.

Please, Governor, let your own judgement and your observation of reality be your guide. Rise above petty partisan games, and don’t repeat the same mistakes of your lamentable predicessor. If you can’t, we will all be worse off.

~A Concerned Californian~

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Lives Destroyed

aka: Just Another Day in the War On Drugs

Federal Appeals Court: Driving With Money is a Crime

A federal appeals court ruled yesterday that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, “United States of America v. $124,700 in U.S. Currency,” the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a “lack of significant criminal history” neither accused nor convicted of any crime.

On May 28, 2003, a Nebraska state trooper signaled Gonzolez to pull over his rented Ford Taurus on Interstate 80. The trooper intended to issue a speeding ticket, but noticed the Gonzolez’s name was not on the rental contract. The trooper then proceeded to question Gonzolez — who did not speak English well — and search the car. The trooper found a cooler containing $124,700 in cash, which he confiscated. A trained drug sniffing dog barked at the rental car and the cash. For the police, this was all the evidence needed to establish a drug crime that allows the force to keep the seized money.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez’s story.

Yesterday the Eighth Circuit summarily dismissed Gonzolez’s story. It overturned a lower court ruling that had found no evidence of drug activity, stating, “We respectfully disagree and reach a different conclusion… Possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity.”

The man was never charged with a crime. There was no proof offered or required that he was in any way connected to the drug trade. But in our war on drugs, that doesn’t matter. And he and his business associates are out their entire life savings.

Now, I don’t know whether his story is on the level. I’ll freely admit that someone driving a rented car not in his name, carrying $124,700 in cash, is a little suspicious. But who holds the burden of proof? If the government is going to confiscate $124,700, I’d say the onus is on them. But in the war on drugs, you have to prove your innocence. The government can come in, destroy your life, confiscate your property, and unless you prove a negative, the best you can do is ask nicely for them to make it right.

I wish I could say that any of this surprised me. But in the war on drugs, not much surprises me any more. I’ve stopped expecting anything approaching justice or common sense. It’s but one more example of our government disregarding the Constitution, disregarding individual rights, and disregarding sanity, in the quest for ever-greater power. I fear that it will get worse before it gets better, and in the meantime, I can only hope that nobody I know or care about gets hoisted on the pike as the next “victory” in the war on drugs.

But don’t just take my word for it. Below is a video from LEAP (Law Enforcement Against Prohibition), a group of current and former law enforcement personnel. As the people who have spent years as the front-line force in the war on drugs, they’ve seen firsthand exactly what has been accomplished. A string of destroyed lives, non-violent people in jail, violent people enriched by the illicit drug trade, and at the end of the day, not a whit of improvement in the proportion of our population who are addicted to drugs.

How long do we have to continue this before we can finally admit it’s not working?

Hat Tip to Radley Balko on the video. If you’re also fed up with the damage to our society, our Constitution, and our civil liberties caused by this useless “war”, please pass this video along.

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Just Following Orders

Is this man just enforcing the law, or is he actively (and enthusiastically) adding propaganda on top of it? It seems the DEA has a traveling exhibit linking drug funding to terrorism. Legalization proponents say the profits are due to the black market and prohibition, the head of the DEA says he’s “just following orders”. Where have I heard that excuse before?

Drug-Terror Connection Disputed

“If we taxed and regulated drugs, terrorists wouldn’t have drugs as a source of profit,” said Tom Angell of the nonprofit Students for Sensible Drug Policy, which focuses on restoring financial aid for college students with drug convictions.

DEA spokesman Steve Robertson responded: “We’re a law enforcement agency — we enforce the laws as they are written. Congress makes the laws. People say if we didn’t have [drug] laws there wouldn’t be a problem, but there was a problem before and that’s why laws were established.”

I can see that sometimes people need to fulfill a job requirement that they may personally disagree with. But do they need to create traveling propaganda exhibits as well? Did Congress tell the DEA to do that?

A photograph of President Bush waving a flag after the Sept. 11 attacks is juxtaposed against a black-and-white image of an African American mother smoking crack cocaine in bed next to her baby. Larger-than-life portraits of Osama bin Laden and Pablo Escobar line the walls. The central message of a traveling Drug Enforcement Administration exhibit unveiled at Chicago’s Museum of Science and Industry yesterday is that terrorism and drugs are inextricably linked.

And if you didn’t believe in your mission, would you say something like this?

DEA spokesman Robertson also took a broader view of terrorism and drugs.

“Terrorists’ goal is to tear down current societies and governments and offer something else,” he said. “Drug abuse degrades societies from within because of the effect on society, on users and on health services. Drug trafficking is a way to degrade societies, which helps terrorists in their goal.”

There’s a big difference between just enforcing the laws that Congress makes and actively promoting the policies as if they are just and logical. If you tell me that you honestly believe drugs are bad and the prohibition is good, we can have a logical debate about it. But when you’re actively promoting prohibition and generating propaganda while offloading the responsibility for your actions to Congress, you’re trying to have it both ways.


Eric recently provided this quote about Prohibition. One could equally relate it to the War on (some) Drugs:

“The prestige of government has undoubtedly been lowered considerably by the Prohibition law. For nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. It is an open secret that the dangerous increase of crime in this country is closely connected with this.”
— Albert Einstein
(1879-1955) Physicist and Professor, Nobel Prize 1921
Source: “My First Impression of the U.S.A.”, 1921

Let’s— for a moment— assume that it is correct for our government to in some way regulate the drug trade. It’s not a view I support, but one could make a case that criminalizing (at least to the point of fines, not imprisonment) drug use could be a method of internalizing the externality. Drug abuse causes wider societal problems, and thus imposing some penalty on the user could be seen as a way of making users pay for the wider costs of their use.

IF— and again, this is not an approach I advocate— you treat drug use in this manner, it can be compared to another law that is widely ignored: the speed limit. Excessive speed is one of those problems which can lead to increased crashes and costs to society (note: I am not arguing that speed limits are set correctly). Thus, imposing fines on speeders is a way of both influencing behavior and imposing costs on those who create a higher risk to make sure they pay for the costs incurred by that risk.

Which makes me wonder: What if we enforced speeding laws like we enforced drug laws? Now, you all must think I’ve drank far too much tonight to suggest such a thing, but if Americans did not need automobiles to the extent they do in our society, it’s not that far-fetched. After all, it’s not that difficult for politicians to claim, based on the statistics, that cracking down on speeders would be for the children. The only reason that speeders are not treated this way is that speeders are not a minority, as drug users are.

So let’s think about it. What abuses of civil liberties have we allowed in the drug war? What will we allow in the “speed war”? You think red light cameras are bad? Over in Britian they already have speed cameras, ready and waiting to nail anyone above the posted limit. I’m guessing that if you really pursue it, you’ll have GPS tracking implanted into cars to ensure that they’re following limits. But that’s simply detection, and that’s only the start.

When you elevate a common crime to eeevvviiilll status, particularly a crime that most people don’t feel is necessarily “wrong”, you run into a problem. In order to continue to enforce the crime and stop the behavior, you must continually increase penalties. The only way to get people who don’t feel like what their behavior is wrong is to make the penalties so high, and the detection so severe, that nobody dares get caught engaging in that behavior.

We’ve already gotten to the point where cars, houses, and any other property “used” in the commission of a drug “crime” can be seized. What happens when we do the same for speeding? You’re caught speeding? Lose your license and your vehicle. That should cut down on it, right? If you create a BS law that nobody feels is legitimate, the only way to enforce it is to create draconian punishment!

Sounds like the drug war.

Now, let’s imagine the opposite. I’m not going to go full-on with the legalization of drugs bit. Sure, that’s where my true ideological roots lie, but let’s move on with the thought experiment. What if, as I proposed at the beginning, drugs crimes were treated the way we currently treat speeding?

When it comes to speeding, there are those people who are truly reckless. When it comes to drugs, we have people who cannot responsibly use drugs, and are hopelessly locked into abuse. But with speeding, we have different approaches to the guy doing 9 over on the interstate and the guy doing 110 in a sports car. It’s the difference between a $75 ticket and going to jail. We don’t have different approaches to the guy smoking a joint at home and the guy high on PCP terrorizing a grocery store. Both are treated as if their crimes are unforgivable.

If we treated nonviolent drug use as a minor crime, solved by fines instead of draconian imprisonment, we might see a rise in drug use. But I don’t know if we’d see much of a rise in drug abuse. And if we considered the penalties to be a monetary fine, internalizing the externality of the social cost of dealing with drug use, we would stop seeing the imprisonment (a much larger social cost) of nonviolent drug offenders. Giving a non-violent pot-smoker a $100 ticket is revenue-generation. Putting a non-violent pot-smoker into jail for a year costs taxpayers thousands of dollars. Which is closer to a positive transaction for society?

But politicians aren’t interested in reducing costs to society while increasing freedom. They’re interested in control. A never-ending “War on Drugs” allows them to continually ratchet up control while fighting a chimera. The only way they can continue this is through propaganda. Einstein knew a little something about the destruction of rights by government. He also knew about the propaganda that made the rest of the populace complicit in it. He was smart enough to get out before it was too late. Will we have such foresight?

When Negotiation Is Merely Appeasement

We should seek by all means in our power to avoid war, by analysing possible causes, by trying to remove them, by discussion in a spirit of collaboration and good will. I cannot believe that such a programme would be rejected by the people of this country, even if it does mean the establishment of personal contact with the dictators. –Neville Chamberlain

I found reading the words of the man who nearly brought destruction to the British Isles and Europe in the years leading up to World War II to be both enlightening and astonishing. Then-Prime Minister Chamberlain sounded not too dissimilar from how the American and European Left sound today. Whether speaking on the need to see things from the other’s point of view–no matter how barbaric–or the infallibility of diplomacy, it was like I was reading the latest missive from DailyKos or the most recent editorial in the New York Times.

Chamberlain was thankfully succeeded by a man of strong will and stronger judgment. One who was neither afraid of being blunt in words nor being decisive in action:

We ask no favours of the enemy. We seek from them no compunction. On the contrary, if tonight our people were asked to cast their vote whether a convention should be entered into to stop the bombing of cities, the overwhelming majority would cry, “No, we will mete out to them the measure, and more than the measure, that they have meted out to us.” The people with one voice would say: “You have committed every crime under the sun. Where you have been the least resisted there you have been the most brutal. It was you who began the indiscriminate bombing. We will have no truce or parley with you, or the grisly gang who work your wicked will. You do your worst – and we will do our best.” –Winston Churchill

In later years, Churchill criticized Chamberlain’s policy of appeasement, saying that it is nothing more than feeding others to a crocodile, hoping you’ll be the last to be consumed. What makes appeasement so dangerous–particularly from the Chamberlains of the world–is that they themselves may not realize what they are asking for:

This is the second time in our history that there has come back from Germany to Downing Street peace with honour. I believe it is peace for our time. –Neville Chamberlain

Central to their misguided belief is that peace is always possible. How they justify this central premise, I have never heard articulated in a logical manner. Men fight for many reasons. Sometimes they fight over property. Sometime over some slight–real or imagined–made by one against the other. But sometimes they fight because they hate the other with every fiber of their being. As in the case of the proverbial Hatfields and McCoys, it is entirely likely that conflicts of the latter kind are rooted–somewhere in the fog of antiquity–in disputes of a more tangible nature. Whatever their origin, when it comes to pass that one group defines themselves by their very hatred of the other, such matters become irrelevant.

Diplomacy can only provide a solution when the discord is directly tied to a given action or series of actions. When a state fights another, not because of who they are but because of what they did. In such cases, negotiation can provide the means to provide redress for the offending parties. The source of agitation now removed, peace is possible, indeed likely.

When the catalyst for one state’s aggression against the other isn’t what they did but who they are, there can be no peace. There can exist for a time an uneasy ceasefire. A hostile and brooding silence. But the roots of the conflict remain in place. Such an untenable situation is hardly to be desired, yet this is the limit to what negotiation can bring us. For while agreements between ambassadors and heads of state can silence the guns, they cannot change the hearts and minds of people.

What the West, Israel, and the parts of the East not already fallen face with Islamofascism is precisely the latter situation. Only intentional ignorance could lead one to any other conclusion. From the attempt to push Sharia in France and England, to the hostility of several immigrant muslim activism groups in the West, to of course the words of their own leaders, one can be left in little doubt as to the intentions of Islamic leaders. Just as Mohammed himself preached death to non-Muslims, so too do these groups. They hate the way we pray (or don’t pray), they hate the freedom we allow women even more than the freedom we allow men. They hate us for no reason but the fact that we are not them. And though many Muslims may not feel the same way, far too few will stand up against the despotic tyrants who cage their people and seek to murder us in our beds. There is no possibility of peace with men who hate you for who you are. Only an ephemeral and strained armistice.

If this is your goal, then by all means, engage in talks that will usher in your temporary truce. But know what it is you are asking for. Know that as long as you leave the men who hate you in power, they will be plotting your destruction, even as you drop your guard for the ‘peace’ you have bought.

Crossposted from Indian Cowboy

Stadium Searches

If I wish to pat you down before entering my home, to ensure you’re not carrying a weapon, it’s my property, and I have a right to do so (and you have a choice to consent to a search, or leave). If I own a store, and you have a backpack with you, I have a right to know what’s in that backpack before you enter, or you can refuse to consent to a search (and thus I turn you away).

But at some point, a judge has decided that the NFL, as the governing body of professional football, doesn’t have the same property rights with the stadiums its games are played in:

A federal judge has upheld a ban on security pat-downs outside Raymond James Stadium before Tampa Bay Buccaneers games, ruling Friday the practice violates the constitutional rights of fans.

“A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protection envisioned by our Founding Fathers,” U.S. District Judge James Whittemore wrote in his 26-page order. “Our Constitution requires more.”

The ruling is a victory for Valrico civics teacher Gordon Johnston, 60, a Bucs season ticket-holder who filed suit against the Tampa Sports Authority in October 2005.

I can see some potential reasons why the judge would find this way. First, Raymond James stadium was partially taxpayer-funded, so under one reading, the government has a role in its policies and thus this is a government infringement on the Fourth Amendment. Another potential reason is that the Tampa Sports Authority, which administers the stadium’s operations, is a government agency, and thus this is government infringement on the Fourth Amendment. Since the suit was brought directly against the Tampa Sports Authority, this is where I think the reasoning must have come (having not read the ruling myself).

But I think both arguments fail due to one crucial fact. It is not the government who is setting these policies or ensuring their compliance. It is the NFL. The NFL, as the governing body of a VOLUNTARY league, have decided that their fans might feel more secure in a stadium if fellow fans are searched before they are allowed to enter the stadium. This is the NFL’s decision, not the government’s.

That being said, I think it’s a stupid decision. Given the ineffectiveness of the “search” they perform, it’s nothing more than an annoyance. It will take very little ingenuity to smuggle something past this “search”. In fact, I think it’s much more likely that the real result of this policy will be to find contraband (such as outside food and drinks), not to actually improve the safety of fans.

But I realize that it’s my choice to attend an NFL football game, and that should I determine that I want to enter the NFL’s stadium and view the game, I might have to submit to the policies that they have set. Anything else is a violation of the NFL’s right to set the conditions under which their games are played.

No Incentive to be Accountable

Listening to Newt Gingrich speak, I remember one of his stories. He was speaking to a crowd, asking about people who traveled overseas. He asked them how many had taken money out of an ATM in a foreign country. Think about it. You’re 6,000 miles from home. You stick a magnetic card in a machine, punch in a few numbers, and in seconds you have the local currency ready to spend. It takes it out of your bank account at a slightly unfavorable exchange rate, but it is a secure and reliable transaction on any point of the globe. And we’ve all gotten to the point where we consider it so secure that we don’t even keep the receipt! Of course, that’s a bank, where if you lose money, you get sued. Not so with this story:

Senator Seeks to Create a Single Spending Database

Technically, creating a central searchable database to track all types of federal spending wouldn’t be a problem, experts say.

If large banks can monitor individual credit card transactions, certainly the Office of Management and Budget could set up a Web site for federal spending, said Alan E. Webber, senior analyst at Forrester Research Inc. of Cambridge, Mass. “It would be a huge undertaking, but it would be feasible.”

But whether it would be politically feasible is something else entirely. “The lobbyists are not going to want this to come out,” Webber said.

Webber was commenting on legislation by Sen. Tom Coburn (R-Okla.) that was approved Thursday by the Senate Homeland Security and Governmental Affairs Committee. It would require the Office of Management and Budget to set up a searchable Web site containing data on all types of federal spending — including contracts, subcontracts, grants, subgrants, loans and other financial assistance.

The bill says the database would have to be searchable by agency, geography, industry, congressional district and types of federal funding.

He’s right about one thing. Technically, it wouldn’t be a problem, and while tracking $2.5T in spending won’t be easy, it would be feasible. But he’s wrong about another. It won’t be the lobbyists that interfere. It will be the inherent sloth and inefficiency of government.

I was thinking about this recently as I pondered my license plates. I had considered getting a vanity plate, something either related to my alma mater (Purdue) or liberty-related. But I wanted to know what license plates were available. After all, I don’t want to find out that all permutations of “BLRMAKR” are taken, and then get my 6th choice of plate. Now, if the Georgia DMV were smart, they’d make a very simple searchable database for people looking for vanity plates. In fact, it would be almost trivial for them to put such a thing together. But they’re a government monopoly, so they don’t care about serving their “customers”.

In the private sector, tracking money is a crucial part of running a business. Because you’re competing against other companies, you have to justify internally and to your shareholders (if a corporation) exactly where the money is going and why. Waste gives your competitors an advantage, and lost money is a quick way to ensure you have absolutely no shareholders. If you’re a corporate accountant, and come up with a way to better track and control monetary output, you get a raise. If, on the other hand, you lose lots and lots of money due to incompetence, you get fired.

But in the public sector, it’s a completely different mindset. You have nobody to compete against, except other government entities vying for funding. If you spend all the money you have, you ensure that your budget will increase for next year. And as for justifying spending to shareholders? When you extract your funding from behind a gun, you don’t even need to worry about that. You can always take more when people have no choice as to whether to provide it. If you’re a government employee and find ways to highlight fraud? You piss off your coworkers AND your bosses, because you’re drawing attention to them. But if you lose money, nobody worries (in reality, their accounting is so screwed up that nobody even notices), because they can always get more.

It’s a problem of incentives. There are no incentives for government to be efficient. So why do they care if we plebians can track their spending? They may make a half-hearted effort to create such a database, but as with everything else in government, it will soon either become so out-of-date and incorrect as to be useless, or so corrupted by political pressures as to be useless.

I’d like to think that the forces in our Congress that actually care about spending restraint could bring something like this about. But it’s clear to me that everything that constitutes government makes it resistant to the idea of accountability. We can’t point the finger at “lobbyists”, as much as I enjoy to do that for a host of other problems. Instead, the structure of government itself is the problem.