Category Archives: Liberty

“Bad” or “Wrong” or “I don’t like it” is not equivalent to “Unconstitutional”

In a comment on someone elses post, another reader wrote “The DEA is an unconstitutional and illegal agency”.

This bugs me… We frequently see these sorts of statements made about the DEA, the ATF, the federal reserve (where ok, there’s at least a rational and reasonable though flawed argument to be made… most of the people shouting stuff like that above aren’t making those arguments, but still)… Basically any federal agency that they don’t like, or which enforces laws, or uses delegated powers which they personally don’t like.

No, the mere existence of the DEA is not unconstitutional or illegal. It is perfectly constitutional in that it is an executive agency chartered to enforce the laws promulgated by the legislative branch.

The fact that the federal government has no constitutional authority to outright ban or criminalize such substances as the DEA is chartered to regulate, or to ban or criminalize their manufacture, use, or possession (and only limited power to regulate their sale. No, sorry, regulating interstate commerce and making such laws as necessary for the general welfare does not grant them such broad and deterministic powers… and Wickard v. Filburn is bad law and needs to be overturned), does not mean that all laws relating to such substances are illegal or unconstitutional. There are legitimate regulatory powers that such an agency may lawfully and constitutionally exercise.

AS CURRENTLY EXTANT AND IN THEIR CURRENT ROLES AND ACTIONS… The DEA often engages in unconstitutional behaviors, and acts to enforce unconstitutional laws. That much is certainly true. But they are not inherently unconstitutional, or illegal.

Those are actually really important distinctions. Not just semantics or distinctions without difference.

This is so, because you go about addressing the issues, and solving the problems, differently. Things which are blatantly and directly illegal or unconstitutional are best addressed in one way. Things which are peripherally so, are best addressed in a very different way.

You have to shoot at the proper target, with the proper ammunition.

Also, it’s really important to remember, that “bad and stupid” or “harmful” or “undesirable”, or “pointless”; does not necessarily mean “unconstitutional”. Nor does “constitutional” mean “good”, or “useful” or “effective”.

That’s not even a matter of judges discretion or interpretation… The constitution actually provides far less protection of rights, and limitation of powers, than people believe it, expect it, and wish it to (at least explicitly… the 9th and 10th amendments… there’s much bigger and messier issue).

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Windowpanes, Pencils, and Paperclips

A few days ago I wrote something on facebook that bears repeating here:

A comprehensive understanding of the pencil problem, combined with a thorough understanding of the broken window fallacy (and its inputs and corollaries… Hazlitt for example), makes a pretty good inoculant against socioeconomic lies and stupidities.

Although they are implied by the conditions above, perhaps one should also specifically reference the scale and complexity problems, the perfect information fallacy, the perfect man fallacy, and the law of unintended consequences…

Some of our readers may be unfamiliar with the pencil problem.

In comments, the novelist Ryk Spoor provided a decent explanation, which I’m going to paraphrase here, with my own edits and revisions (and the addition of the last bit, about planning and control):

No one man, can make a pencil, or at least a pencil which could be sold economically.
In general terms, the pencil problem, is that even simplest and most common objects in our civilization generally require an immense number of people and inputs; to not merely build, but manufacture and sell in sufficient numbers, to make it worthwhile to build them cheaply (or at least so that they can be sold economically).

The applies to everything from cars and computers, to pencils, to paperclips.

If you wanted ONE paperclip, it would be an epic undertaking, from locating the appropriate ores, refining them, turning them into steel, figuring out how to draw the steel into the appropriate size of wire, and then finally producing the paperclip from that wire. The amount of effort involved in it would be months of your labor, assuming you had the talent and resources to do it at all.

Instead, you go to a store and buy a 100ct box of them for a dollar; or even at minimum wage, a few minutes of your time for a hundred of the things.

Multiply that by all the different types of goods and services in a modern civilized society, and it starts to become clear just how many people, in how many different specialties, with how much infrastructure, are needed to keep everything running.

Given that scale and complexity, it should also be clear how impossible it would be to plan, control, and manage, anything approaching a national economy or infrastructure centrally; or in fact in any way other than as devolved and decentralized as possible.

The original statement of the problem in this way came from an essay by Milton Friedman (which was a restatement of an earlier essay, “I, Pencil” from Leonard Read, which was a restatement of Hazlitt, which was a restatement of Bastiat and back down the chain).

A video of Friedman explaining the problem:

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

The problem with “Wouldn’t it be…” and “Wasn’t it…”

Progressive ideas usually begin with:

“Wouldn’t it be great if…” (progressives are generally theorists)

Ok, right there with you so far…

Conservative ideas usually begin with:

“Wasn’t it great when…” (conservatives are generally empiricists)

Yup, that works for me too…

The complication is the next step, taken by both progressives and conservatives:

“Since that would be great, it is our moral obligation, to use the force of government to MAKE it that way”

… and that’s where we part ways.

The problem, is that I believe I have no moral right to force MY personal beliefs, preferences, or ideas on anyone else (no matter how “great” or “right” they may be).

I also believe that we have a moral obligation to use the force of government as little as possible (even if doing so may be “for the greater good”).

Of course, that’s where the kicker hits, from both left and right…

“Since you oppose something which is great, and which is a moral obligation, you must either be stupid, or evil”

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Why Libertarians Should Vote Libertarian This November (and Always)

As usual at this stage in the election cycle, my social media newsfeeds are filled with indignant Republicans lecturing libertarians about “spoiling” elections in favor of Democrats. I will do as always, listen to the howls as they cast themselves impotently upon the shoals of my principles—and continue to fill in ovals only for those candidates with an established commitment to limited government, enumerated powers and fiscal restraint.

I urge my fellow libertarians to do the same.

Never mind Libertarian candidates pull votes from Democrats as well as Republicans. Never mind Libertarians sometimes spoil elections in favor of the Republican. What I find even more interesting this election cycle is how much more sympathetic the howlers are to third parties and spoilers now that it is the social conservatives feeling betrayed by the GOP.

Tax-Hike Mike Huckabee is threatening to leave the party and take “a whole bunch of still God-fearing, Bible-believing people” with him if the party “abdicates” on gay marriage. Chairman of the (misnamed) Liberty Council Matthew Staver is now openly calling for the creation of a third party if Republican “cowards” cannot hold the line against gay marriage. The (misnamed) National Organization for Marriage is actively campaigning against Republican candidates Carl DeMaio and Richard Tisei for their breach of party orthodoxy:

We refuse to follow the leaders in Washington as if we were sheep expected to dutifully support candidates whose positions are an insult to conservatives and will severely damage the nation. We are going to do our best to defeat these candidates because they are wholly unworthy of holding high office.

Remember all the times libertarians have said the same thing, not in connection to gay marriage, but as to a plethora of other issues? I know my social media will soon light up with outrage  at these social conservatives actively spoiling elections against Republic candidates.

…Any time now…

It is ironic, really, because however faithless the GOP has been with the theocratic wing of its base, its breach of faith with the small government contingent has been near absolute. The GOP has given us the Patriot Act, warrantless wire-tapping, protectionist tariffs, expensive subsidies for agribusiness, a crony capitalist energy bill, and Sarbanes-Oxley.

It has bequeathed us a $1.9 trillion war waged on credit to topple a secular dictator whose position is now being filled by the group known as ISIS. Its War on Drugs is a spectacular failure, whose face looks like this, and which is now opposed by the majority of Americans—along with five Nobel prize economists.

The GOP “abdicated” long ago on local control of schools, federalizing education to an unprecedented extent with No Child Left Behind. In an irony observed by Edward H. Crane of the Cato Institute back in 2002:

Mr. Bush campaigned for the greatest federal role in education that any president, Republican or Democrat, had in US history. Never mind that 20 years before, Mr. Reagan had won a landslide victory on a platform that called for the abolition of the Department of Education.

The GOP oversaw an incredible expansion in the federal budget, even for non-defense discretionary spending, and a new entitlement program in the form Medicare Part D, with net expenditures of $727.3 billion through 2018. Its candidates now openly campaign against cuts to Medicare and Social Security and the party leadership takes the position that it cannot risk unpopular cuts when winning re-election is so crucial.

…So they can cut spending?

There will always be another election looming. This is not the logic of a party sincere in its intent to rein in the size and scope of government. It is the logic of a party whose purpose in winning elections is to hold onto power for its own sake.

Even if the GOP had given libertarians a reason for support this November, it is increasingly unclear it can deliver in national elections. Only 25% of Americans identify as Republican, the party having lost fully 12% of its base to Independents, who now make up 42% of the electorate (31% are Democrats).

Is there a target electorate for a party of politicians who are entitlement-state liberals on economic issues, hawks on foreign policy, surveillance state security-fetishists, and who believe in using the power of the government to promote conservative values on social issues? How big can that voting block be? According to Dave Nalle writing for American Broadside, Huckabee’s following consists of about 6-8% of Republican voters nationwide.

In contrast, as many as 59 % of voters self-identify as “fiscally conservative and socially liberal,” the exact opposite of the “socially conservative, fiscally liberal” brand of conservatism the GOP has served up in the last fifteen years. Against Huckabee’s 6-8% following, 61% of young Republicans and 64% of millennial evangelicals support treating same-sex marriages equally under the law.

Even the Catholic Church sees the writing on the wall.

Contrary to Huckabee’s handwringing, the GOP can maintain its position on abortion and remain a viable party. Forty-six percent of American adults, 45% of independents and 28% of Democrats are pro-life. Even outspoken Democrat women like Kirsten Powers would put a limits on abortion well before the end of the second trimester. There is common ground to be had there.

But the GOP cannot remain a viable party without the libertarian swing vote. Even under conservative estimates, 15% of voters can be treated as consistently “libertarian” in their positions, representing a voting block as big as the religious right—and one that is far more willing to stray from the GOP.

It is clear the GOP needs libertarians this November—hence the shrill refrain from the peanut gallery of social media. But it is not clear what the GOP has to offer. Its tent is big enough to cover both libertarians and social conservatives. But there is no such thing as a tent big enough to cover both libertarians and social conservatives who want to use the power of the government to promote their social preferences.

Those two are mutually exclusive. They are matter and anti-matter. They cannot exist in the same time in the same place.

Until the GOP chooses, it will remain a splintered force in politics. And unless it chooses the side of small government, it offers little incentive for libertarians to look for shelter in its tent.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech…

…PLEASE STOP…

They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression… at least as far as speech goes.

“Well, that’s just your perspective… this is mine”

No… You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle…

That’s not so bad… it’s OK to be wrong… everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now… and the picture is decidedly mixed.

    We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on “hate speech” in this country. We already HAVE criminalized “suspect motivations”, through “hate crime” law.
    The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
    Witnesses are being suppressed out of fear of government retaliation.
    The IRS has gone after conservative political groups, simply for being conservative.
    We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections.

These are HUGE REAL PROBLEMS.

By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can’t stop you or punish you for it (except in some very strictly limited ways).

It doesn’t mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can’t back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

“But… but… political correctness… thought police… BAD”

Yes.

I never said that political correctness WASN’T a chilling force on freedom of speech and even freedom of conscience… Of course it is.

…But that is not the same as government using force against you because of it (though with “hate speech” and things like campus “speech codes”, we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don’t like, or whose ideas you don’t like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don’t.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation…

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don’t have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it… so long as it’s aligned with THEIR personal beliefs.

Frankly, I don’t see very many “social conservatives” complaining very much when it’s “progressives”, gays, atheists, muslims, “perverts” etc… who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most “social conservatives” aren’t complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired…

…because you don’t like their ideas or how they express them.

…Really, most anyone who you would identify as the enemy, or the “other side” or whatever other outgroup identification it may be…. seems it’s ok to you if THEY have to live with the consequences of their choices, actions, and words…

Most of you are only complaining when it’s happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone… but most.

The same of course is true of “the other side”… starting to see the point yet?

So really… What you’re asking for is not “freedom of speech”, it’s “freedom of speech that you like”, and freedom FROM both speech, and consequence that you don’t.

That’s not freedom. That exactly the same as “the other side”… you just like the opinions better.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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