In the aftermath of the most recent terrorist attacks in Paris, a commenter calling herself Mrs. Lemuel Struthers on Reason’s Hit and Run threw down the gauntlet:
What I’d really like to hear is a libertarian/classical liberal approach to approaching this problem of a minority of anti-liberals within a society engaging in war-like behavior (murder) while using the values of the society they live in to promote their ideology. The enemy within – if you will. While at the same time demographic and immigration trends tend to support the likely enlargement of populations who will tolerate and even encourage that ideology.
And, just to be clear, I was really asking how France should address its issues from a an-cap perspective, not the USA.
I take up her challenge with this post. The post actually contains two mini essays. One about France like she asked. But first, I will start with an essay about Ancapistan… the one she said she wasn’t interested in (because the essay about France would be incomprehensible without it)! ;) » Read more
This short statement sums up many people’s views on “constitutionalism” and “limited government” in a nutshell. It goes like this. If the government tries to do something ‘limited government guy’ disapproves of – regulating light bulbs or soda consumption – he will scream “limited government” and point at the Constitution. But when the federal government does something ‘limited government guy’ deems necessary, he makes excuses for it, and supports it, whether authorized by the Constitution or not.
The federal government lacks the constitutional authority to do any of these things. But ‘limited government guy’ wants the feds to enforce airline security because he finds it “a good idea.” Here’s the thing: a lot of people think telling ‘limited government guy’ how many ounces of soda he can drink is a good idea. A lot of people think telling ‘limited government guy’ what kind of light bulb he can screw into his fixture is a good idea.
So, why exactly should the federal government implement the things ‘limited government guy’ likes (airport security) and not those others things he dislikes? He really doesn’t have any basis to object, other than his conception of “good ideas.” He’s already tacitly admitted the federal government can do pretty much anything. Now it only comes down to whether it should.
Of course, this is all pretty much moot in 2015 because Americans don’t really give a crap about what the Constitution says or means any more – unless it relates to abortion, porn, gay marriage or keeping somebody from slapping the 10 Commandments up in a public space.
By the way, I bet ‘limited government guy’ thinks it’s a great idea for the feds to meddle in some of those things too.
I’ve encountered quite a bit of these “constitutionalists” and “limited government guys” recently. For example, there are actually “limited government” people in my social media feeds who think anything related to Islam should be banned (burkas, mosques, “Sharia Law” in private family matters, the very practice of Islam itself etc.). “Islam isn’t a religion, it’s an ideology (or cult, or philosophy, or…). Even if I were to concede that point (which I don’t), banning Islam or any other expression of conscience which does not violate the rights of others would still be a flagrant violation of the First Amendment. A true “limited government” person supports the rights of people with whom s/he disagrees.
Mike Maharrey is definitely onto something here. Most people aren’t really in favor of liberty for “others” but only for themselves.
Today I respond to the accusation that, beyond defending their own freedom, gun rights advocates offer only ¯\_(?)_/¯ in response to the problem of violence. In truth, I have deeply-held beliefs about the ills that plague modern society. Addressing some of them might impact the rate violence.
Doing so, however, would be more complicated, more difficult and require more compromise than I think most would-be agents-of-change really want to put forward. This is my challenge to them.
Guns are a tool of violence, not a cause. To find cause, one must look deeper.
Start with the cheap, shallow, one-size-fits all blueprint for life we bequeath sheep-like to our children, most of whom never commit violence, but who suffer in legions from some degree of the same aimless, disaffected, lack of fulfillment reflected in the manifestos left behind by the ones who do.
Eighteen years of artificially prolonged childhood, most of it spent in government run schools. Another four to seven years of delayed adulthood in the university system that is “the new high school.” An 8-to-5 job with a few weeks of vacation per year. Marriage, house, kids, retirement and here’s your gold watch, well done!
Literally, every element of that blue print needs to be re-examined.
Our Public Schools Are All Wrong. Children are meant to move, to explore, to question, test and try. Our schools are designed to enforce the opposite. Sit down, hold still, be quiet, and do as one is told. Learn the subjects and in the ways and at the pace dictated by the enlightened bureaucracy who drew up the blueprint.
National standards make this worse—not because the curriculums are bad, but because they do not light a spark in every child, but force schools to “teach to the test” rather than encourage individual interests.
What we need are young people so filled with spontaneity and wonder and interest and passion and joy that they never have a chance to feel empty or aimless or disaffected or isolated. We want them learning to follow their own directions and find their own projects so that they know how to fill their own spaces inside.
Instead, after eighteen years of conformity and confinement—waiting for permission to speak, to move, to go to the bathroom; memorizing information available in seconds on the phone in their pocket to take tests that don’t matter and learn skills they won’t need for jobs that no longer exist in an economy that has moved on—they no longer even remember what it was to have agency and interests and pursuits and passions that weren’t served up by the faceless social engineers who pre-planned their lives.
And we wonder why they turn their anger outward when they find themselves empty on the inside.
We wonder why so many shootings happen at schools and universities.
More Variety and More Choice. I have always been fascinated by people who focused from a very young age on working toward starting a business. Anecdotally, my observation is that this focus correlates with being a first or second-generation immigrant to the U.S.
For whatever reason, the U.S. culture does not impart this focus, or the skills necessary to achieve it, to our children. At best we fail to encourage—at worst we actively discourage—young people from doing things like starting businesses, pursuing trades, making movies, starting websites, touring with symphonies or otherwise rocking the boat that is the carefully calibrated public school system designed for an economy that no longer exists.
Instead, after a second period of delayed adulthood in the “new high school” that constitutes our university system, we graduate them into the world as overgrown children, searching for jobs (a new place to sit down, hold still, pay attention and obey) rather than creating them.
We ought to encourage them early to nurture all that messy, disorderly, nonconforming creativity into internal flames to fend off the chill of the inevitable disappointments and hardships of an imperfect world. As it happens the same qualities and pursuits that would nurture that flame are the ones the new economy demands (so convenient!). Creativity. Innovation. Outside-the-box imagination. Experimentation. Risk-taking. Self-motivation.
We don’t need more high school. We need more trade schools, apprenticeships, artists, entrepreneurs, more alternatives and more choice.
More Options for Spirituality. Our culture provides little recognition or support for spirituality outside the mainstream religions. At best, alternative sources of spiritual fulfillment are ignored or denied as a basis for a moral, meaningful life. At worst, they are mocked.
This is wrong. This is yet another area in which people on the fringes are pushed away from the very things that might otherwise gird them against emptiness and alienation, the very connections that might otherwise pull them back from the edge.
We should reconsider forcing the choice between indoctrination into a religion that does not resonate or derision for looking elsewhere. The only correct response to a person seeking spiritual fulfillment outside the major religions is: “That’s great. How can I help?”
The Disastrous Collision of Victorian Prudery and the Aimless Hookup Culture. Our sexual paradigms are as limited and disappointing as our schools and spirituality. We continue to largely limit young people to two seemingly opposite, but both deeply unhealthy, models.
A recent post at The Harvard Crimson by a student who was raped reflects some of the ways in which the terrain between these two models has yet to be mapped. Let’s consider equipping young people with better tools than getting wasted or just seeing where it goes—tools like straightforward, sober communication about wants and needs and how to ensure they are compatible and met for both parties.
What does sex have to do with violence?
A more sex-positive culture and education might lead to fewer bitter fallouts from failed relationships, fewer unwanted pregnancies, and fewer ill-considered marriages, all of which lead to the broken families and absentee parents that correlate with violent crime.
On October 1, a gunman killed nine people at a community college in Oregon.
Two days later, a U.S. drone strike killed 22 at an Afghan hospital, including twelve doctors and ten patients—three of whom were children.
On each day before, between and after those two, 1,300 people died in the United States from tobacco. Another 800 died from obesity-related health conditions. Eighty-seven died in motor vehicle accidents—including three children. Thirteen people were murdered with something other than a gun. Ten people drowned—including at least two children.
Five children died of cancer. Almost 1500 adults did as well.
Well-meaning people with big-faith in big-government are certain we could hasten the speed of that downward trajectory if only people would set aside their political differences and come together in good faith to enact “common sense” gun control legislation.
It is not so simple.
Rhetoric and good intent are no substitute for fact-based cost-benefit analyses of specific, identifiable additional gun control laws (make no mistaken, we already havea lot of them).
Put to the test by those who demand demonstrable benefit in exchange for ceding rights, it is more difficult than the speechifying might suggest to identify specific, practicable regulations that would effectuate reductions in the murder rate.
There are significant discrepancies in the ways other countries report both private firearm possession and homicide rates. Accounting for those discrepancies (no easy task) alters the way the U.S. compares on both measures.
If suicides are excluded, five of the 10 U.S. states with the lowest gun-death rates are states with less restrictive gun laws. Whether to include suicides is a complex question because, while certain gun restrictions may correlate to lower rates of suicide by gun, they do not correlate with a reduced rate of suicide overall. In any case, there is no logical reason to conclude that repealing concealed-carry and stand-your-ground laws would impact the rate of suicide.
Other states and countries (like Illinois, California and Brazil) have strict gun control laws and high homicide rates.
Some low homicide jurisdictions (Hawaii, for example) have tight gun restrictions but, crucially, already had low homicide rates before implementing their stricter gun laws. They did not get to their reduced homicide rate via their gun laws. They already had it.
In other examples (like with the 1994-2004 assault weapons ban in the U.S.) gun homicides fall in the wake of restrictive legislation but, crucially, were already on a downward trajectory when the legislation was implemented—and stayed on the same trajectory, thus demonstrating no discernible impact on the murder rate.
Sometimes murder rates may even rise temporarily in the wake of gun control legislation, only to fall back to pre-restriction levels.
Finally, it is important to remember we are not trying to stop people from using guns to commit murder. We are trying to stop them from committing murder. On that note, it is not clear any correlation at all exists between U.S. state gun control laws and their homicide rates.
This is not that surprising once you consider the following: 1) the rate of people wanting to commit murder is influenced by variables other than the jurisdiction’s gun laws; 2) once becoming bent on murder, a person may not feel any compunction against obtaining a gun illegally; or 3) he may simply switch to a different method of murder that does not require a gun; 4) at least some of the murders that would otherwise have been stopped via defensive gun use may instead succeed; and 5) some criminals will be emboldened by the belief their victims will not be armed.
Seriously, try it. Start the process. Stop whining about it on Twitter, and on HBO, and at the Daily Kos. Stop playing with some Thomas Jefferson quote you found on Google. Stop jumping on the news cycle and watching the retweets and viral shares rack up. Go out there and begin the movement in earnest. Don’t fall back on excuses. Don’t play cheap motte-and-bailey games. And don’t pretend that you’re okay with the Second Amendment in theory, but you’re just appalled by the Heller decision. You’re not. Heller recognized what was obvious to the amendment’s drafters, to the people who debated it, and to the jurists of their era and beyond: That “right of the people” means “right of the people,” as it does everywhere else in both the Bill of Rights and in the common law that preceded it. A Second Amendment without the supposedly pernicious Heller “interpretation” wouldn’t be any impediment to regulation at all. It would be a dead letter. It would be an effective repeal. It would be the end of the right itself. In other words, it would be exactly what you want! Man up. Put together a plan, and take those words out of the Constitution.
Of course, repealing the Second Amendment will not effectuate any actual gun control. It would just remove one of many inconvenient obstacles to that process.
Once those problematic constitutional obstacles are removed, we are still left with the difficult task of determining what, exactly, the new legislation should look like.
Let us consider Australia’s approach.
In 1996, a man in Australia killed 35 people with a semi-automatic firearm. In the wake of that tragedy, the country enacted legislation mostly prohibiting automatic and semiautomatic rifles, imposing stricter licensing requirements and ownership rules, and funding a buyback program—which succeeded in removing one-sixth to one-third of the nation’s guns from public circulation.
Now almost twenty years out, researchers have concluded that despite the massive outlay of funding, there is little evidence of any impact on the homicide rate.
The Australia model then (assuming the U.S. even could achieve the same success) would leave 60-80% of our guns in circulation and have no discernible effect on the murder rate.
Maybe Congress will simply authorize the ATF and National Guard to go door-to-door and confiscate weapons. Imagine it, a la Reason’s Austin Bragge:
You’re going to need a plan. A state-by-state, county-by-county, street-by-street, door-to door plan. A detailed roadmap to abolition that involves the military and the police and a whole host of informants — and, probably, a hell of a lot of blood, too. … [T]here are probably between 20 and 30 million Americans who would rather fight a civil war than let you into their houses.
And after this massive outlay of money, this blood bath between those willing to die to keep their guns and those willing to kill to take them away, how much safer will we be?
Everything you need to manufacture firearms is available at Home Depot. The materials needed to manufacture a 12-gauge shotgun cost about $20. If someone wanted to build a fully automatic Mac-10 style submachine gun, it would probably cost about $60. Every electrician, plumber, and handyman in the country has the materials necessary to manufacture firearms in their shop.
The weapons we are wringing our hands about today already are the muskets of yesteryear. Standing on the precipice of home-built drones with bombs, remote-controlled flying automatic weapons, IEDs, 3-D printed guns, backpack-sized dirty bombs and internet DIY chemical and bio weapons, arguing about the gun show loophole or how to define “assault weapon” grows ever more quaintly provincial and antiquated.
The largest school massacre in U.S. history is still the Bath Massacre in Michigan that killed 38 children and six adults.
A growing legion of raving statists are now openly prepared to sacrifice individual liberty on the altar of social conformity; to dismantle more than 200 years of limited-power governance, checks and balances, and judicial review of government overreach, as the acceptable price of empowering political majorities to impose their collective will; to destroy the religious and economic liberties they support in the hopes of quashing the social liberties they do not.
What they fail to see is that this very deference to populist will has delivered the leviathan government under which we now endure, its millions of pages of rules and regulations, its $18,000,000,000 in debt, and its overarching micro-management of our lives through such legislation as the Affordable Care Act—upheld twice now by the judicial poster-child for the very deference the raving frothers demand.
What they fail to see is that there is no framework for constitutional governance that maintains a judicial check on legislative and executive infringement against the liberties they acknowledge, while simultaneously withholding judicial power to check legislative and executive infringement against the liberties they deny.
Chief Justice John Roberts sees it.
He understood with clear-eyed conviction that the results in NFIB v. Sebelius and King v. Burwell were the price of favoring legislative and executive will over individual liberty. And he did not fail to deliver.
Rather than double-down on this doomed path, conservatives should embrace the role of the judiciary in our constitutional framework.
SCOTUS Has No Power to Expand Government, Only to Protect Individual Liberty
The Supreme Court cannot enact legislation or regulation. It cannot order expansion of the other two branches. It can only respond to their actions. It does so in one of three ways: 1) upholding the action as constitutional; 2) declaring the action unconstitutional and therefore invalid; or, 3) requiring an otherwise permissible exercise of power to comply with the Equal Protection Clause.
Thus, the Court’s power lies solely in preserving individual liberty. It cannot initiate (although it can permit) an encroachment thereof. In that framework, “restraint” can only mean “abdication,” and complaints of “activism” have no meaning. The Court cannot create “new law.” It did not do so in Obergefell.
Obergefell involved two forms of state action, with distinct constitutional implications.
The first involved so-called “bans” on same-sex marriage.
In an effort to ameliorate the obvious political problems with “banning” people from marrying, even ardent opponents of same-sex marriage tend to acknowledge that free citizens have the right to pair-bond, cohabitate, share beds and raise families. But lest any forget, in 1924 police raided the home of Mildred and Richard Loving and charged them with a felony punishable by five years in prison for the “crime” of being married. Until 2003, U.S. citizens could still be arrested and jailed for engaging in consensual, adult sexual relations in the privacy of their own homes. As recently as 2012, North Carolina made it a crime punishable by actual jail time for ministers to perform marriage ceremonies for couples with no valid state-issued wedding license.
With respect to this issue, SCOTUS held that the right to pair bond with a willing partner, to identify such coupling as a marriage, and to be so treated by willing members of one’s community, all fall within an area of liberty so fundamental to the existence of free individuals and societies that it cannot be circumscribed by government force.
The second form of state action at issue in Obergefell concerned state licensing programs that give official imprimatur to certain opposite-sex couples, but deny such benefit to otherwise similar same-sex couples. SCOTUS held that if states voluntarily implement such programs, they must administer them commensurately with the Equal Protection Clause.
It did not hold that anyone has a fundamental right to the existence of a licensing program. It did not hold that private individuals, churches or business have to acknowledge same-sex couples as “married.”
It did not create new legislation.
Nevertheless, in response to this relatively innocuous decision about the limits of state power, the frothers have embarked on a path so dire and chilling it should keep any genuine defender of liberty awake at night.
A Dismantling of Liberty
A true proponent of limited goernment would embrace the concept of rights so fundamental to the existence of freedom that they cannot be surrendered to the collective; would defend the notion that the powers of government are few, narrow, and enumerated, while the rights of individuals are many, broad, and unenumerated; would include in that list of individual rights the accumulation and enjoyment of the fruits of one’s labor, the pursuit and acquisition of the trappings of “happiness,” the enjoyment of life and liberty; and would insist on judicial review as protection against federal and state encroachment of such rights.
Instead the frothers’ views run the gamut from disavowing individual rights beyond those enumerated in the first eight amendments and/or granted by a state legislature, to denying that even the first eight amendments have been incorporated against state action, and all the way to repudiating judicial review altogether.
Such views have found some degree of support from at least one 2016 POTUS candidate. In July, Senator Ted Cruz (R-Tex) held a congressional hearing focused on “reining in” the only branch whose power lies solely in protecting individual liberty.
This is shameless, inexcusable statist inanity.
Left to the whim of legislatures, the Constitution would literally have no effect. Of all the lunacy on the right this election season, this is the most chilling.
Absent the contempt action against Kim Davis, blue states can withhold gun licenses by employing clerks who object to their issuance on religious grounds.
In their irrational fear of the boogay man, statist conservatives have become their own worst enemy. And their weapon of choice in this self-defeating war continues to be the myopic insistence on “judicial restraint:”
For years, “judicial restraint” has been primarily about not thwarting the will of “democratic majorities.” There are myriad doctrines to accomplish this. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).
We have now seen the fruition of the decades-old demand for “judicial restraint.”
Despite conservative howls to the contrary, in both NFIB v. Sebelius and King v. Burwell, John Roberts did exactly what he had been programed to do by decades of Borkian restraintism. In the first, after finding that the Commerce Clause did not empower the federal government to mandate health insurance, Roberts nevertheless found a way to “save” the Act by rewriting it as a tax. In the second, he deferred to administrative interpretation of the Act.
Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.
Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of “judicial restraint” and “deference” to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.
* * *
Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King.
In fact, it gives us even more than NFIB and King. It gives us what has always been the goal of progressivism: removal of constitutional limits on government action, deconstruction of checks and balances, and dismantling of separation of powers.
It gives us unity of the branches in the wielding of unlimited power.
It gives us state legislatures empowered to require Christian bakers and wedding photographers to service gay marriage.
Because there is no government with the power to withhold marriage from individuals that does not also possess the power to impose marriage on individuals.