In case you by some miracle hadn’t noticed it yet, tens of thousands of web sites around the country and around the world, are “going black” or putting up banners explaining that they are not available or there is no content today etc… In protest against the “Stop Online Privacy Act” and the “ProtectIP act”, which are currently (or were recently), being promulgated in congress.

We don’t have a problem with anyone who does. It’s important that people understand what SOPA and PIPA are (or were), and most folks are sadly unaware of the kind of stupid and harmful things that our government does.

Google and Wikipedia are two of the most important and most used sites on the net; and by participating in this protest, they will very certainly make a lot more people aware of this issue.

But “going black” isn’t what we do here.

We talk about political and social issues here; in particular about liberty and freedom. We try to inform people about the important issues, events, and principles of liberty and freedom; and then talk about them in as free and open a way as we can.

I personally think that going black would be entirely against what we are about here; and while it might help to draw more attention to the problem, it wouldn’t help us inform you, or help us begin the conversation about the issue.

… and of course, you can’t go to wikipedia day to find out about it…

So, I personally, would like to do something that is in the spirit of protesting the idiotic and harmful nature of these pieces of industry lobbying masquerading as legislation…

…And share a few things:

That’s the best explanation of why the freedom to share (within fair use of course, copyrights ARE important) is important; and why legislation like PIPA and SOPA are not only stupid and harmful, but entirely antithetical to the American system of ordered liberty.

And then there’s this piece by my friend (and bestselling author, buy his excellent books please) Larry Correia:

“for all of the people out there on the internet having a massive freak out about the government potentially damaging something they love… WELCOME TO THE PARTY.

You think this is something new or unusual? Nope. This is just about a topic that you happen to be familiar with. If you fall into that camp, I want you to take a deep breath, step back, and examine all of the other issues in the past that you didn’t know jack squat about, but your knee jerk reaction was to say “there’s a problem, the governement has to do something!” Well guess what? The crap the federal government usually comes up with to fix these problems is similar to SOPA. In other words, the legislation addresses a perceived problem by instituting a bunch of stupid overregulation and taking away someone’s freedom.

You think people need access to affordable medical care and shouldn’t be denied coverage? Well, you got used and we got the bloated ridiculous mess that is Obamacare. You saw a news report about how big business defrauded people and said congress should do something? Well, everyone in the business world got screwed because of Enron by completely useless new arbitrary crap laws, and a few years later we got into an even bigger financial crisis which the arbitrary crap laws we spent billions conforming to did nothing to prevent. No, because that financial crisis was caused by people saying that there was this huge problem that needed to be fixed, so more people who couldn’t afford to pay mortgages could still buy houses, and the government simply had to do something to fix this problem!

Any crisis… Any problem… You ask the feds to fix it, you get this kind of answer. Almost never do the laws fix the actual problem. Instead the government gets bigger and gains a few more powers and it doesn’t fix the issue. When the problem gets bigger, then the government gets bigger and gains a few more powers that actually make the problem worse. Oh look! Despite all of these laws the problem has gotten even bigger? Whatever should we do? Why, I know! Let’s pass an even bigger law that takes away more individual freedom and gives the government more control!
Repeat, repeat, repeat.

Any topic, any situation, any problem.

They address it, you lose freedom and they gain more control. Some of you are only offended today because this particular law hurts something you enjoy. The rest of the time? Screw it. You can’t be bothered to pay attention. Or worse, people like me who are up in arms over an issue are just cranks or anti-government crackpots.”

I was going to write something roughly similar to this, but Larry beat me to it… and I’d rather share what he wrote, because it’s good, and because I can.

At least for now…

Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.

Gregory is right: preserving the Bill of Rights ultimately rests with all of us.

In the first video below, Mark Kirk (R-IL) in his floor speech explains how Sections 1031 and 1032 violate the principles of the Bill of Rights by reading the applicable amendments. Sen. Kirk makes some geography based distinctions in determining whether U.S. citizens have due process rights (which I disagree with; geography should not matter) but otherwise does a great job of explaining to his fellow senators why keeping these sections in the bill is a terrible mistake.

Though he voted against the offending sections of the bill, Sen. Kirk ultimately voted with the majority in supporting the overall legislation.

Sen. Rand Paul (R-KY) on the other hand supported neither. Paul’s floor speech is equally compelling and perhaps even more chilling than that of Kirk’s. Could you find yourself an innocent victim of this bill? Do you have any missing fingers? Do you have more than a seven day supply of food? How many firearms do you own and if so what kind of ammunition do you use? Depending on your answers to these questions, it’s possible that you could find yourself detained, perhaps at Guantanamo Bay or elsewhere, indefinitely with very little legal recourse according to Sen. Paul.

Related Posts:

The Late David Nolan’s Indefinite Detention of U.S. Citizens Fears One Step Closer to Being Realized

Are You or Someone You Know a Victim of the Drone Mentality?

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

Quote of the Day: Americans Cheer the Assassination of the Fifth Amendment Edition

Obama: Judge, Jury, and Executioner in Chief

During his debate with Sen. McCain, Nolan warned voters of what he called a “dangerous, evil, un-American” bill which McCain co-sponsored called S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” This bill would authorize indefinite detention of American citizens without trial. Nolan was so outraged by this bill he said that this was one reason he decided to run against Sen. McCain.

Sen. McCain brushed off Nolan’s comments saying that Nolan “may be a little bit biased.”

Fast forward just over a year later, Sen. McCain has sponsored another piece of legislation hidden in the National Defense Authorization Act for FY 2012 that is very similar. One of the more concerning aspects of the bill is Section 1031:

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons’ for purposes of subsection (b)(2).

The next section, Section 1032 adds some confusing language as to whether American citizens can truly be held indefinitely:

SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Christopher Anders, senior legislative counsel of the ACLU points out that the language contained in Section 1032 only applies to Section 1032. To put it another way, according to Section 1031 U.S. citizens can be detained indefinitely and even sent to another country without the normal civil liberties protections guaranteed in the Fifth, Sixth, and possibly Eighth Amendments.

Sen. Mark Udall (D-CO) introduced Amendment No. 1107 to the bill that would have mitigated much of the civil liberties concerns found in 1031 but it was soundly defeated by a 61-37 vote. Only two Republicans, Mark Kirk of Illinois and Rand Paul of Kentucky voted in favor of the Udall amendment.

Now the vote for the National Defense Authorization Act for FY 2012 is set for today, December 1, 2011. There isn’t much time left to stop this horribly unconstitutional bill from being passed.

This being said, President Obama has threatened to veto the bill if these sections are still in place when it hits his desk. I’m not quite sure how the president can say on one hand he can send drones to kill American citizens while on the other say he opposes indefinite detention of American citizens but a veto would be the correct response regardless.

President Obama might well veto this bill but I have no confidence that any of the Republican challengers would veto similar legislation in the future save Gary Johnson (who is sadly very much a long shot at this point), Ron Paul, or perhaps Jon Huntsman.

We can now see that David Nolan’s concerns he expressed in the 2010 debate were well founded after all.

“Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.”

I designated the above tweet by 18 year-old high school senior Emma Sullivan tweet of the day, not due to the content itself (it’s actually quite juvenile), but for her refusal to write an insincere apology letter to Gov. Brownback under pressure from her principal.

Go here for the rest of the story.

Isn’t it interesting that “1%er” Ron Paul has won several straw polls and has even cracked the top 3 or 4 at various points during the campaign and is almost always polling in the double digits? Ron Paul is hardly a 1%er despite efforts on the part of the sponsors to limit his exposure (in the most recent debate, Paul had a whopping 89 seconds to make his case on national television).

Then there’s Herman Cain the other “marginal” candidate who until the most recent couple of weeks following accusations (whether legitimate or not) of sexual harassment along with some other missteps on foreign policy was neck and neck with the establishment favorite Mitt Romney. Cain may have fallen from grace but he isn’t a 1%er without a prayer of winning neither.

The only one of the three who is truly a 1%er unfortunately is Gov. Gary Johnson. Of the three Johnson is the only one who has been successfully excluded from all but two of the nationally televised debates. Up to this point, the Johnson campaign has encouraged supporters to write and call the debate sponsors to encourage them to reconsider but to no avail. In true libertarian freedom of association fashion, Johnson, though disappointed with his exclusion, respected the right of the debate sponsors to exclude him.

Now it seems the Johnson campaign has had enough with The Gary Johnson Rule and it’s no more Mr. Nice Guy. The Johnson campaign has now filed complaints with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) in response to Johnson’s most recent exclusion from the South Carolina CBS debate.

Here are some excerpts from the complaint filed with the FEC:

On Saturday, November 12, 2011 Respondent CBS televised on its national network another debate, but instead of including all leading candidates has elected to arbitrarily and capriciously exclude some candidates and include others. In so doing, CBS is, without any other explanation, choosing to support certain candidates. By excluding viable candidates like Complainant, who has been included by cable networks in their debates CBS is directly and significantly supporting those candidates it favors, and advocating the nomination of one of their favorites and opposing the nomination of Complainant, whom CBS evidently disfavors. In so doing, CBS is making an illegal corporate in-kind contribution to those favored candidates. The value of this contribution vastly exceeds the contribution limit that applies to any category of lawful donor.

2 U.S.C. §431 (8) (A) (i) defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” No rational person could possibly argue that exposure during an hour-long debate televised in prime time on the CBS network is NOT something of value. Indeed, CBS sells advertising spots during prime time for huge sums, and makes and reaps significant revenues in doing so. By any standard, this airtime is a thing of value within the ambit of that phrase in this statute. If all viable candidates were being included in the debate that might lead to a different conclusion, but by excluding candidates CBS disfavors –opposes—and including those it favors –supports—Respondent is violating the Act.

I believe the Johnson campaign has a very valid point in this complaint to the FEC. Whether we like the campaign finance laws or not, Johnson is bound by them and must abide by them; it only seems fair that CBS must be legally obligated to follow them as well.

Gov. Johnson’s complaint to the FCC, however; is much more bothersome IMHO.

Here are some excerpts (from the same link as above) from the FCC complaint [Much of the language in the FCC complaint is identical to that of the FEC so I’ve omitted those parts]:

The Federal Communications Commission has the authority to regulate fair access to the airwaves of broadcast by network television networks.

[…]

The public owns the airways over which CBS broadcasts, and the public deserves to be free from bias- favoring some candidates over others- as well as illegal support of certain presidential candidates on national network television. Unfair access to the airwaves of broadcast by network television is clearly an issue within the FCC’s mandate. The illegal corporate contribution CBS is making in including some candidates and not others is addressed in a separate formal complaint to the Federal Elections Commission. The FCC should take appropriate action against CBS.

The public owns the airwaves? Yes, I understand that this is the accepted conventional wisdom but this is not something I would have expected from perhaps** the most libertarian leaning candidate to ever seek the nomination for the Republican Party!

I fully and completely understand the frustration because as a Gary Johnson supporter, I too am frustrated with how the Johnson campaign has been treated by the establishment. I take it damn personally that the candidate who best advocates and represents my views has been excluded from these debates while big government, freedom hating, torture supporting, war mongering fools like Rick Perry and Rick Santorum make idiotic assertion after idiotic assertion on national television often unchallenged . I often wonder if Johnson might have had similar success as Ron Paul or Herman Cain had his (and by extension, my) voice been heard in these debates.

We will probably never know.

But to write the FCC and make the argument that Gov. Johnson has some sort of right to participate in the debate because the public “owns” the airwaves just makes me cringe. This comes far too close to the so-called “Fairness Doctrine” for my comfort. The public doesn’t own the airwaves, the broadcasters do. CBS buys the licenses and is supported by advertisers – not the public.

If the debate was sponsored and aired on PBS and/or NPR the Johnson campaign would have a legitimate point because those stations are supported by the public (i.e. taxpayers and viewers like you) but this is not what we are talking about here.

Maybe the Johnson campaign believes the ends justify the means but I would rather Gary Johnson lose following his small government principles than win by compromising them.

*Unrelated to the Occupy Wall Street movement

**Though I’m sure Ron Paul supporters would disagree

That’s right, starting September 1 , more than 500 Michigan restaurant and bar owners will begin turning state lawmakers away from their establishments. State Senator So-and-so wants a brew? Too bad. Politicians won’t be served until they revisit the state’s 2010 smoking ban, which, owners say, has devastated business, and left bars like Sporty O’Tooles on the verge of collapse.

Okay, “nanny” is a bit of a misnomer in this case as these bar owners are reserving their freedom of/from association rights in their own establishments but good for them for standing up to these busybodies in the legislature. These are the kinds of bans I would love to see more of.

Before I go any further, for the purpose of clarification I think it’s important to define some key terms namely “conservative” and “progressive” as I’m not using these terms necessarily in the political context that readers here and elsewhere are most familiar with (though in the political context, I find both these terms to be often quite ambiguous).

According to the World English Dictionary, the most appropriate definition for the purpose of this post for conservative is “favouring the preservation of established customs, values, etc, and opposing innovation.” The same dictionary’s definition for progressive is “favouring or promoting political or social reform through government action, or even revolution, to improve the lot of the majority: a progressive policy” (this definition is a little more off the mark IMO; progressives don’t necessarily have to use government via the political process to change the culture).

In thinking of my original question with these definitions in mind, I also find it instructive to learn about other cultures. Believe it or not, my inspiration for this post and raising this question came from watching a documentary series on TLC called “My Big Fat Gypsy Wedding.” My wife introduced me to the series just the other day. Because I knew next to nothing about Gypsies and being the curious person I am, I decided to watch several episodes with her that we had recorded on the DVR. This documentary series follows several British/Irish Gypsy families and interview the few trusted outsiders (the bridal dress makers in-particular) to give viewers a small glimpse into their culture.

What did I learn about English Gypsy culture? I learned that they are a very closed community; very resistant to allowing outsiders in. Girls are married off at a very young age in very extravagant weddings, many are engaged by the time they are fourteen (girls who marry at 20+ are considered old). Wedding receptions are especially important events for both single Gypsy boys and girls as this is where many find their mates. Teen and even preteen girls are scantily clad and dance provocatively (almost like stripper moves) to attract the boys who are encouraged to “grab” one of the girls for a kiss (i.e. often against her will). At first glance, watching the reception Gypsy culture seems quite hedonistic. But then I learned that Gypsies are actually quite strict on the question of sex. Cohabitation and/or premarital sex is an absolute taboo as to engage in either would bring shame to their families. Divorce is also a big no no and marrying non-Gypsies is rare and frowned upon (to put it mildly). Gypsy girls are usually taken out of school at a very young age to help care for younger siblings and therefore illiterate. Most have no dream of having a career or even a menial job outside the home as they are expected to be good housewives for their families (the woman’s place is in the home which is usually a camper trailer). According to the show, there is no notion of equality between men and women in Gypsy culture. These aspects of Gypsy culture isn’t likely to change anytime soon as many Gypsies fear that any change would further threaten their culture already in decline (according to the show, there are some 300,000 Gypsies in the UK).

In watching this, I couldn’t help but think of our own culture and then culture more generally. There’s nothing all that unique about gender roles in Gypsy culture, even as appalling as we might find them. This sort of male dominance is common throughout world history and has crossed nearly all cultures at one time or another. It wasn’t all that long ago when this was how our culture treated women. I doubt that all that many American conservatives would want to return to that time. Progressives challenged the notion that women should be second class citizens and I would argue that our culture has benefitted. Yet at the time, conservatives must have thought such change would doom our culture.

Even in the Gypsy culture, there are members of the community who rebel against the traditional values. In one series’ episodes, a woman who left and divorced her abusive husband was interviewed. She is not allowed to remarry. Because of the inequities inside the community, Gypsy men physically abuse their wives with little or no repercussions. In another episode, a young Gypsy man did the unthinkable: married a “country girl” (i.e. a woman who isn’t Gypsy). When asked why he would do such a thing he said that it was none of anyone’s business who he chose to marry.

Even as the culture wars rage on here and elsewhere, I think it’s important to see how far we have come. Just last century, not only were women treated as second class citizens but there was also Jim Crow, bans on interracial marriage, “sun down towns,” the internment of Japanese American citizens during World War II, McCarthyism, and various other government policies that treated people differently who happened to be ethnic, political, and religious minorities.

When I hear a cultural conservative pine for a return to “simpler times” this is what comes to my mind. Yeah, times were simpler: the women, blacks, and other minorities knew their place and white males didn’t need to worry about competing with members of any of these groups. Times may have been simpler but certainly not better for these people.

On contemporary controversial issues like gay marriage, women soldiers serving in combat roles, immigration policy, conscription, trade, and the death penalty to name a few, in the face of well-reasoned arguments for change, those resistant to changing any of these policies offer the standby appeals to tradition. “This is the way it’s always been, its tradition!”

Having made my case that cultural change isn’t necessarily a bad thing, change isn’t necessarily a good thing either. Progressives play an important role in challenging tradition but sometimes the conservatives have valid reasons for preserving tradition. While conservatives at times resort to appeals to tradition progressives make fallacious appeals to novelty. Arguing that adopting a change because its new is no better an argument than arguing for the status quo because its old. Also, sometimes progressives try to change too much too soon without considering unintended consequences.

In a country of 300 million or so individuals, it’s difficult to imagine either the conservatives or the progressives having their way for very long – which is a very good thing. With every action there is a reaction. Consider the counterculture of the 1960’s. This counterculture challenged just about every long held traditional value and institution. This progressive movement tested the limits of free speech, civil rights, ignited the sexual revolution as well as the antiwar movement, feminist movement, gay rights movement, and environmental movement. But at some point, there was a strong reaction to what was viewed by some as the excesses of such libertine (not to be confused with libertarian) and hedonistic notions such as “free love” and drug experimentation.

Returning to my original question: Whether you consider yourself more of a conservative or a progressive, what would our culture would be like today if your side had ever “won” the culture war? Would this truly be a culture you would like to be part of?

Many people I know seem to have no problem telling others how they should live their lives, even going as far as urging their avatars in congress to write laws to employ government force if necessary to get their way. Most of these same people (often legitimately) feel like their rights are violated when it is they who are being encouraged, lectured, or forced to conform to the will of a majority. It’s this political “might makes right” mentality that makes politics way more important than it should be in an allegedly free country. If most or all of our elected and unelected public servants respected the rights of life, liberty, and property and took their oaths to defend the Constitution seriously, the individuals who happened occupy these offices would be of very little consequence.

But since we do not live in such a libertarian utopia, to answer my own question I would have to say that this conservative vs. progressive push and pull is a very healthy thing. I believe the counterculture of the 1960’s in some ways was very good in challenging the establishment and the social mores of the time. It was time for a shakeup. I also believe, however; that if the progressives of the time had gone unchallenged and reached the logical conclusions of their philosophy, our culture today would be almost as terrible as many of the conservatives critics claim.

Are there any conservatives reading this who would like to argue that America would be better off today if not for them damned long-haired dope smoking Hippies, feminists, civil rights protesters, antiwar agitators, and environmental wackos of the 1960’s and beyond? No sexual revolution. No rock n’ roll. Nothing that challenged the traditional values of this culture at all.

Are there any progressives reading this who would like to argue that America would be better off today without the stubborn, conservative, Bible thumpers, and guardians of the establishment who stood in the way of bringing all these novel ideas to fruition fundamentally changing everything? Are there not at least some aspects of our culture that you are glad the conservatives were successful in preserving?

As someone who frankly would like to be left alone and not be told or forced to live my life a certain way, I’m quite happy that I don’t live in either of these Americas. Cultures that are worth enduring will endure and those that are not will not. But participation in one culture or another should always be a matter of personal choice, not force.

But the statement that really jumped out from Walker’s interview is his own perception of the bargaining fight:

“They defined it as a rights issue. It’s not a rights issue. It’s an expensive entitlement.”

What’s his first step to show how wrong Walker is? Well, he skips right to the United Nations, a body whose Declaration of Human Rights clearly states that you can use your rights as long as you don’t do so in a way “contrary to the purposes and principles of the United Nations” (Art. 29, Sec 3). He starts there and follows on with a lot of other legally-created privileges that he calls rights:

Hmm. I’m pretty sure the Universal Declaration of Human Rights, passed by the UN after World War II (and drafted and adopted by the US), says that collective bargaining is in fact a human right. Oh, yes, there it is, in Article 23 of the Universal Declaration:

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Then there’s the National Labor Relations Act (NLRA) here in the US, which “explicitly grants employees the right to collectively bargain and join trade unions,” according to the scholars at Cornell University Law School. Or as the National Labor Relations Board’s website puts it, the NLRA “protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits.”

All of this analysis has one critical flaw: it doesn’t properly recognize that there are multiple kinds of rights, and that a right which the government shall not deny is, well, slightly different than one that it grants. I left the below in a comment to that Kroll’s post at the original site:

Are you even familiar with the distinction between “negative rights” and “positive rights”?

Negative rights are rights that you have unless someone else infringes upon them. You have a right to life, but not to force others to produce the food and shelter you need to live. You have the right to freedom of speech, but not the right to force anyone to listen (or, in the case of blogging, to force a blog to print your comments to a post). A right to healthcare or education — if you define it as me not being stopped by government or highway robbers from freely purchasing health or education services on an open market from a willing seller — is a negative right.

Positive rights are rights that require someone else to procure them to you. A right to healthcare — if you assume that those who can’t afford care should be covered by “society” — is a positive right. A right to an education — if you assume it should be paid for by government taxes — is a positive right. A right to food — if you define it as foodstamps for the indigent — is a positive right. *ALL* positive rights can be described as “entitlements”, as they’re what we as a society might define all people are entitled to be provided to them if they cannot do it themselves.

A “right” to organizing a union is a positive right (inasmuch as it restricts and employer’s ability to fire people for trying to exercise it). If we so choose, in our democratic society, that people should be allowed to unionize to counterbalance what may be perceived as in unfair labor advantage to the employer, we can call it a “right” all we want, but it’s a positive right, not a negative right. As such, calling it an “expensive entitlement” doesn’t seem all that out of the ordinary. I don’t see any real disconnect in what Walker said.

Now, I was a bit unclear in that final paragraph. What I intended to say was this: The right to form a union is a negative right. It is inherent in the right to freedom of association. The right to collective bargaining is a negative right. It is inherent in the right to freedom of speech. As you point out (and as I intended to), it becomes a positive right when we write laws or regulations forcing businesses to the other side of the table. Forcing an employer to actually deal with them on those collective terms is the “entitlement” of that positive right.

Andy Kroll waded into deep water here, and it’s clear he didn’t want to recognize that. It’s also potentially true that Gov. Walker did the same — the original linked article doesn’t make clear whether Walker’s statement about entitlement had deeper context. Kroll is trying to use one line from an already snipped interview to make Gov. Walker sound like a simpleton who doesn’t understand the nature of rights. In doing so, Kroll only proves that to be the case about himself.

Stewart Rhodes, the founder of an organization established in 2009 called Oath Keepers, says that not only do soldiers and peace officers have a right to refuse to carry out an order that violates the U.S. Constitution but a sworn duty to disobey the order. Rhodes, graduate of Yale Law School, veteran, former firearms instructor, and former staffer for Congressman Ron Paul’s D.C. office, started Oath Keepers in response to what he perceived as an erosion of civil liberties that has escalated since 9/11.

Oath Keepers’ critics (particularly on the Left) believe the organization to be a Right wing “extremist” organization full of Birthers, Truthers, militia members, hate groups, and various other conspiracy theorists. In this article in Reason, Rhodes clears the air. Also, found in the organization’s bylaws:

Section 8.02
(a) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof, shall be entitled to be a member or associate member.

(b) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates discrimination, violence, or hatred toward any person based upon their race, nationality, creed, or color, shall be entitled to be a member or associate member.

So what specifically makes Oath Keepers so controversial? My guess would be their list of 10 “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.”

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10.We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Imagine how much freer our country would become if everyone in law enforcement and in the military adopted this creed and took their oaths seriously?

All that said, even as disgusting, vile, and hateful as their speech is, even their speech is protected by the First Amendment. In a 8-1 ruling in Snyder v. Phelps, SCOTUS reached that very conclusion.

From Justice Roberts Opinion of the Court:

P12

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing “outrageous.”“Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the]speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).

[…]

[P14 and 15]

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Justice Alito, the sole dissenting Justice also offered a very good observation about WBC’s activities:

Alito, J., dissenting

P4 and 5

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations […]

But of course, a small group picketing at any of these locations would have probably gone unnoticed.

[…]

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain.

In a free society, we have to accept that there will be people like Fred Phelps that we have to tolerate. It’s a very slippery slope to suggest that due to the offensive nature of WBC’s speech that the First Amendment doesn’t apply. As Justice Alito says here, the only reason why WBC chooses to picket funerals is because they know they will get publicity. The best thing the MSM can do is ignore them; don’t give them the free publicity they so crave. Phelps has a right to speak but not a right to be heard.

I have nothing but sympathy to the Snyder family and am very sorry they had to be subject to the hateful antics of Fred Phelps on the day they buried their son. The sad irony is, if not for the brave men like Matthew Snyder, Fred Phelps would not have the ability to express himself in the manner he does.

Part 1 deals with the philosophical foundations that came out of the Age of Enlightenment.

Part 2 explains the reasoning behind each of the ten amendments we call the Bill of Rights

As the narrator went through each of the amendments, I couldn’t help but think of the many instances where these very rights have been violated and continue to be violated by federal, state, and local governments throughout the country. For those of you who want to really know what we are about and the larger liberty/small government movement is all about, these are the very principles we are trying to restore. These are our guiding principles.

If ever you are perplexed by a position that we write about be it our opposition to the war on (some) drugs, opposition to conscription, support for sound money, support for the right to bear arms, opposition to ObamaCare, opposition to the so-called Patriot Act, etc. , you might find it helpful to refer back to these first principles.

I would like to encourage others to share these videos because I would like to see these videos go viral to remind our friends on the Left, the Right, and the middle about why these rights are so important and worth fighting for.

Related: The Philosophy of Life, Liberty, and Property Explained

On the positive side, the mandate section of ObamaCare was found unconstitutional, the military’s “Don’t Ask, Don’t Tell” policy was repealed, Wikileaks exposed the federal government for the corrupt organization it is, the Democrats took a beating on election day, and the Bush era tax cuts were extended (though with the return of the death tax, extension of unemployment benefits, and other compromises in the bill, I’m not yet sure if this was a good or bad thing).

On the other hand, Republicans gained ground on election day (I’m not optimistic that they have changed much since the last time they ran things), the vast majority of incumbents in both parties were easily reelected, government spending is way out of control, the Fed wants to pump some $600 billion into the economy by printing more counterfeit money, unconstitutional invasive searches continue to take place at airports in the name of safety, both Democrat and Republican politicians consider Wikileaks to be a “terrorist” organization, and President Obama believes he can assassinate American citizens where they stand with no due process whatsoever.

On the criminal justice front, The Innocence Network (part of The Innocence Project) exonerated 29 individuals in 2010 for crimes they did not commit. Back in March, Hank Skinner came within an hour of being executed when SCOTUS halted the process. Skinner’s case continues to wind its way through the courts. In other death penalty news of 2010, Kevin Keith’s death sentence was commuted to life by Gov. Strickland, Anthony Graves became the 12th death row inmate to be exonerated in Texas, a key DNA sample was determined to not be a match for another Texas man, Claude Jones who was executed in 2000, and Texas continues to stonewall inquiries into the likely wrongful 2004 execution of Cameron Todd Willingham. As these questionable death penalty cases pile up, hopefully this will be the beginning of the end of the death penalty in Texas and elsewhere.

In a couple of other cases we never quite got around to at The Liberty Papers but deserve to be mentioned: Cory Maye was granted a new trial by the Mississippi Supreme Court because the trial judge failed to give jury instructions to consider a “defense of others” defense and in Arkansas, the Arkansas Supreme Court ordered a new hearing for the so-called “West Memphis 3” to consider newly discovered DNA evidence and juror misconduct from the original trial (if you are not familiar with this case, I urge you to follow this link as a starting point. The more I have looked into this case the more disturbing I find it to be…a perfect example of what is so terribly wrong with the system).

Hopes for 2011
Rather than offering predictions for 2011, here are some of my hopes:

- I hope that the justice will be served in the above cases.

-I hope I am wrong about the Tea Party Republicans and that they will actually be a force of positive change for more liberty and smaller government

-I hope that Ron Paul decides not to run for president for the 2012 campaign but instead puts his support behind former New Mexico Gov. Gary Johnson (I’ll get into my reasoning in a future post).

-I hope by this time next year, I’ll have far more successes than setbacks for liberty to report.

Now it’s your turn. How do you feel about the state of liberty in 2010 and how do you feel about the year ahead?

In this Daily Show segment below entitled “Extremist Makeover – Homeland Edition” Stewart does something that I’ve seen very few pundits do publicly: admit he was wrong. In observing the overreactions of this mosque controversy in which many on the right want to deny freedom of speech, freedom of religion, and property rights to a religious minority out of fear, Stewart realizes that he too overreacted in the wake of the Columbine Massacre when he and others on the left condemned the NRA for going ahead with their scheduled convention in Denver (near ground zero for this tragedy). From there, Stewart plays excerpts from then NRA President Charlton Heston and admits that Heston was right and he was wrong.

Stewart:

If you replace ‘NRA’ with ‘Muslim community’ and ‘Second Amendment’ with ‘First Amendment’ he [Heston] is still right.

Jon Stewart has earned my respect for his intellectual honesty even as others (*cough* Wayne Allyn Root *cough*) have lost it.