“Though shalt not steal.”
When making the case for basing legislation (or even an entire criminal or civil code) on the Ten Commandments, this is usually right behind the Sixth Commandment in being cited as to why it would be a good idea. After all, the reasoning goes, who among us could object to a law that says “don’t steal”? Sure , we might quibble a little about the specifics (there’s a big difference between shoplifting and grand theft: auto, for example), but the basic concept is sound.
And yet… what is theft, exactly?
I believe the Merriam-Webster definition is particularly instructive in this regard: “1. a. the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it; b. an unlawful taking; 2 obsolete : something stolen”. Isn’t it interesting that both current definitions involving personal property include words like ” felonious” and “unlawful”, and it’s an obsolete use to say something as direct and simple as “something stolen”. It becomes even more interesting when you follow that particular line of thought over to the definition of “steal”. I won’t pull every part of the definition I found intriguing and useful, but here’s the very first one: “to take the property of another wrongfully and especially as a habitual or regular practice”.
So where am I going with all of this? It’s an old argument, and one that a lot of folks have written off before as crazy, but pause for a moment and think about it. If someone came to your door and demanded money, and if you didn’t give it to them they would come back with guns and take it by force, would you call that theft? And yet that’s what taxation is, in a nutshell. There may be a few more steps in between the nice ask and the men with guns (they’re called “police”, by the way), but the end result is the same.
So what justifications do people offer for why this isn’t, in fact, theft? First there’s the suggestion that “you owe it to the community”. An interesting thought, and one that I’ve never quite understood. If I offer something for use by “the community” and then demand payment post-facto, that is by definition illegal and immoral; either I state a charge upfront or there is no charge. And yet the oft-cited reasons I “owe it to the community” are for the roads, police, fire department, etc. which I have either never used, never wanted, or never been billed directly for so that I can determine whether I am interested in the service at that cost. As for the schools I attended growing up, what about the taxes my parents paid? And what about the sales taxes I paid on goods I purchased? And again, why was I never given a choice as to whether I was interested in those services in the first place?
But of course, that is often the second argument I hear as to why taxation is not theft; “you had a chance to vote”. I’ve already expressed my opinion on voting, but in this specialized case I’ll narrow it further: this is blaming the victim. If I voted and didn’t get the guy I wanted, I’m being robbed for policies I don’t agree with, except for the ones I do. How is that fair? If I voted and I did get the guy I wanted, I’m being robbed for policies I do agree with, except for the ones I don’t. How is that fair? If I didn’t vote at all, I’m just getting robbed, but I get lectured about how it’s my own fault for not voting, and how is that fair?
Speaking of blaming the victim, there’s another argument that ties into both of the ones above: “You choose to live here.” This is occasionally accompanied by “if you don’t like it here, leave.” This is somewhat akin to saying to someone born into the ghetto that they chose to be born there, and therefore they have nobody but themselves to blame for being there. Show me a country on Earth where I won’t get robbed just for trying to live there, and I might consider living there. As I have yet to find that option, I take the best that’s on the table, but that doesn’t mean I can’t (and won’t) try to make it better, and noting the flaws is the first step.
Having said all this, does this mean I am completely against taxation for all reasons, at all times? No. In all things there must be compromise and balance if we are to live together as a society, and necessary evil is sometimes one of those things. For the common defense, for police and courts and fire departments, the things that we all need and benefit from but nobody wants to pay for until after we need them and it is too late to pay for them, taxation is a necessary evil. But being aware that it is theft, that we are stealing from ourselves and our friends and our neighbors every time we tax, will hopefully keep in check the desire to “do more good”. There is very little good that can be done when the root lies in breaking a Commandment, even though we all know where that paved road leads.
“Thou shalt not kill.”
Of all the Commandments, I personally would have put this one at the top. Maybe I’m funny that way, or maybe I’m just not quite the omniscient being and there are other factors in play I’m not aware of, but it does seem to be a rather important one. Setting all of that aside however, it is at least straightforward. “Thou shalt not kill.” It has also been translated as “Thou shall not commit murder”, which is a very different thing entirely, and it makes a big difference which is the correct statement when looking at this from a public policy perspective. There are two distinct yet equally important reasons for this, one of which I can come down in agreement with the “not commit murder” version, and the other I come down on the “shalt not kill” side, so I’m a bit torn.
For the first reason, there’s the question of “what exactly is murder?” I know that sounds like a silly question to some, maybe most, but it is an important question, not just in jurisprudence but in society. Is murder any time you shorten another person’s time on Earth? If so, I can’t agree with that definition. Put bluntly, if you threaten me or mine, I will not hesitate to use any and all necessary force to affect our defense and escape. That’s not to say I prefer to use force nor do I look forward to the day, but I reserve the right, and while I may regret the necessity of the act I will never regret the act itself.
Likewise, I am a great proponent of the idea that a person’s life is their own, to live as they see fit and only so long as they wish to. If they require assistance in leaving a life they no longer find tolerable, I will not hold someone liable for providing that assistance. Maybe that makes me a bad person in the eyes of some, but that’s what I believe and I stand by it.
So having ruled out those definitive cases, what about the questionable ones? What about the issues of negligence, unintentional action, and incitement? Those I am comfortable at least putting in the custody of the judicial system, as they are questionable, and are worthy of being weighed by a jury. While I can see in each one of those without stretching a case of either vindication or at least a far lesser crime, I can also easily see a case of murder. That is why we have an adversarial judicial system, to sort out such murky cases, and to (ideally) ensure the innocent are not punished along with the guilty.
But the truth is that the judicial system is also something we have to look at when we consider this Commandment, because it is a part of the government, and at least in America the government represents us all. The actions the government takes are, if not literally than at least symbolically, the actions we all take, and if we do not at least raise our voices against the immoral actions than we are equally culpable of them.
I have made my feelings on the death penalty clear before, but here we have another consideration to make. If the State is, collectively speaking, all of us, then every action taken by the State is an action taken by us. That includes every execution carried out by the State. If you believe that the proper interpretation of this Commandment is “Thou shall not commit murder”, you cannot in good conscience ever question any execution carried out, or else you must oppose all of them, and as I have pointed out before the inherent imperfection of man is such that the latter is inevitable. Even if you believe the death penalty is just and can be (and is) applied justly, and therefore it is not murder, do you believe the proper translation is “thou shalt not kill”? If so, you must oppose the death penalty on those grounds alone. As a wise man once wrote, “you can’t eat meat and look down your nose at the butcher.”
It may seem odd that I would have no problem with killing in my own person, or even with someone ending their own life, and I have as much as said I would help someone to end theirs if asked, yet I am opposed to the State taking life in the form of the death penalty. Like most things, it is contextual. I would not kill except as a last resort; I believe that a person has a right to make their own choices about their own life, including when to end it; and if it came down to it, I am willing to assist someone I care about to do what they feel they must even when they don’t have the strength to do it themselves. That does not mean I enjoy it, nor does that mean I prefer it. And when there is another option, I will always take it. For me, that is the heart and soul of this Commandment. There is almost always another option, and it is incumbent upon us to find it.
I have to admit, I’m more than a little confused these days by the apparent complacency among most people towards the failures in government that seem to be coming more fast and furious than ever. It’s not like these are small mistakes or minor rounding errors that are occurring; these are major, ongoing issues, and it’s not just in our own country. If private companies were to make mistakes or (worse) engage in cover-ups of this magnitude, there would be an immediate outcry for investigations and government oversight. But who watches the watchmen? (Well, okay, I did. Great film. But that’s beside the point.)
The counter I usually get from friends and colleagues when I bring these issues up is that “there are other branches of government that are investigating.” Oh, good. That makes me feel ever so much better. Because I certainly would have trusted BP to investigate after the Deepwater Horizon oil spill, and if there were any doubts about private contractors in Iraq I feel quite confident that Halliburton would have gotten to the bottom of it and let us all know the facts right away. They both have internal divisions for checking into that sort of stuff. All major companies do. And they have nothing to gain from gaming the system, right?
The source of my doubt and cynicism is the logical fallacy of it all. Even granting for the sake of argument that each branch of government is independent, that each department is independent, and there’s no amount of favor-trading or back scratching going on, there are still problems. Fact: the cause for the investigation is corruption or ineptitude in a government agency. Fact: the investigators are coming from a government agency. Assertion: we have nothing to be concerned about, because the government will fix it. Does anyone else see the problem here?
The worst violators of this, and I am not pointing at either the left or the right because they both do it, are the ones who demand the most government “oversight” of the free market. Whether it is in manufacturing, finance, or any other field, it seems there is no limit to the amount of regulations, restrictions, and controls they want to impose. And to what purpose? To ensure that nobody does anything wrong. But something always goes wrong, bad things happen, and people always find a way to game the system, for three simple reasons.
The first is that criminals are creative, and where there is money to be made they will find a way to make it. Too hard to import drugs? They’ll start cooking their own. Make it too difficult to get the common stuff they need, they’ll find other ways. Meanwhile, the companies that are being regulated are lobbying Capitol Hill to make sure that the laws are as generous as possible for them and as hard as possible on their current competition as well as any new entrants. The people who end up getting hurt most by these laws are usually the ones inconvenienced by them day in and day out, paying more in money and time for law abiding activities. But hey, anything to prevent 1% of the population from doing something bad, right?
The second reason is that technology marches on. Laws move at the speed of legislation, which (thankfully) is not nearly so fast as the speed of innovation. Every time a new technology hits the market, it has the potential to change the way we live our lives and make existing laws obsolete. This is most often a good thing, but it has its downsides. Fifty years ago nobody ever heard of computer crime, and “identity theft” was when somebody forged your name on a check. But legislators try to make new laws that keep up with the times, rather than understanding that for the most part, the existing laws still work just fine; identity theft is fraud, computer crime usually involves some kind of theft, and we really don’t need new powers to delineate what can or should be done about it.
Finally, sometimes people get hurt because of the law of unintended consequences. Whether it’s because somebody thought they found a new way to make money that everybody bought into with good faith and it turned out the market wasn’t there for it, or maybe there was a government program that was meant to alleviate poverty and instead it perpetuated it for generations (hypothetically). We have imperfect knowledge, and we cannot know the results or far-ranging ramifications of our actions until after they occur; to assume otherwise is the height of hubris. To press on without acknowledging this is simple folly.
So what is the nature of government that sets it apart from other human institutions? In the private sector, if there is corruption, or bad judgment, or even a simple failure to deliver on enough of the promises that have been made to your audience, the price that is paid is that your company loses value, and eventually will go under. In government, the price of these things is… more government. That would make as much sense as rewarding bad management at companies with more money to continue their bad management.
I’m not advocating for a complete absence of government. There needs to be some outside force that does punish the wicked, but there needs to be an understanding as well that government is not always the answer, and not even the first answer. Government should be the answer of last resort, the cure that is only slightly better than the disease. Approached that way, perhaps then we will see a little less of the rampant growth of government, as well as fewer attempts to buy the government we have.
Ever since I was a kid, I wanted a flying car. I know I’m not alone in this, since roughly everyone since ever has wanted a flying car. Cars have been around for over a hundred years, and people have been talking about delivering a flying car for at least half that time, so if as I hear so often “the market will provide”, where’s my damn flying car?
1. The market can’t defy the laws of physics. Don’t get me wrong, I’m not the kind of naysayer who looks at an airplane and says “that thing will never fly”. Of course I understand that man will continue to push past the boundaries of the present, and I fully believe the free market is the best motivator to allow the best ideas to flourish and make their way to the top. But I too often hear libertarians make impossible (for today) wishes, and when you call them on it, they just say, “the market will provide” as if that’s some kind of answer. Yeah, maybe it will someday, but today’s not the day, and tomorrow doesn’t look too good either.
2. The market might provide, but not in the way you think. Actually, my father-in-law has been behind the wheel of a flying car more than once. He has a pilot’s license. I’m not even talking about those big, giant private jets (which are the stretch limos of flying cars), I’m talking a Piper Cub and the ilk. It may not be the flying car everyone envisions, but that’s how I’ve been taught markets work: when you can’t get exactly what you want, they provide a more reasonable alternative. But when most libertarians say “the market will provide” they usually mean it as a blind faith assumption that they can get what they want – somewhere. Which leads to…
3. The market might provide, but not at a price you want to pay. There’s a term I’ve become very familiar with of late: “market clearing price.” It goes like this: say someone actually does invent a flying car. And say they start selling them for, oh, one million dollars. Guess what I won’t be buying anytime soon? And neither will anyone I know, despite the fact that we all want a flying car. The demand is there! It’s there, I tell you! In fact, I’m demanding a flying car right now. And yet I can demand it all day and I still won’t get one until I pony up the cash, because there will be enough people who do.
That’s what a market clearing price is. Even if they could make them cheaper, there’s no incentive to. Same with anything else; as long as people will buy at the price they set, there’s no incentive to lower the price. “But wait!” cry the libertarians, “the free market means someone else can make another flying car at a lower price! Competition, that’s the answer!” Fair enough. But competition will only bring the cost down just so low before it’s no longer the best use of their time and money before they have another, better way to make money. That’s how free markets work, remember?
4. The market only provides to meet demand. Yes, I want a flying car. Yes, I know a lot of other people who want flying cars too. I also know a lot of people who want adult-sized Underoos (no, I am not one of them, no matter what my sister tells you). That doesn’t mean the market will start providing them tomorrow, even if it could meet the engineering feat, and considering the size of some of these people I really hope it can’t. Why? Because there’s just not enough money to be made. Money is just a proxy for demand, which tells us the best use of resources, and quite frankly I don’t ever see adult size Underoos being a good use of resources. For anyone. Ever. And just because everyone I know wants a flying car, or claims they do, doesn’t mean there is enough real market demand for them, because I don’t know everyone. That’s what economists call a knowledge problem. That’s kind of what markets are there to solve, and sometimes the solution is you don’t get your flying car (or Underoos).
It’s time to think in new ways, and hopefully some of the libertarians I know will think about some of the things I’ve written here and lose some of the utopian idealism they have about markets. Markets aren’t perfect. They are the best system we have in an imperfect world to achieve very specific objectives, but there are some things they can’t do. They can’t provide the perfect product at the perfect price in the perfect time frame. More often markets are about finding the best compromise with the resources at hand in the time you have. Or as my mechanic used to say, “we have three options: good, fast and cheap. Pick two.”
So what am I driving at here? Am I trying to tell libertarians to throw in the towel, stop worrying and learn to love the government? Far from it. What I am saying is that faith-based arguments only work when you are preaching to the choir. For everybody else, a little humility can go a long way. Acknowledge the weaknesses of the market, and then point out a few things. Things like the government can’t defy physics either, that government services often cost more than private solutions, and that government options are often more limited than free market solutions when they exist at all.
The false dichotomy of “perfect government solution” vs. “pie in the sky by and by” is a loser every time. But once you start putting real world options next to each other, admitting that each has something to offer but each has inherent weaknesses, you start a meaningful dialogue. The result of that dialogue, hopefully, is that by treating the person you are speaking with as an intelligent person they will offer you the same courtesy, and you can give them a new perspective and something to think on. You may not make a convert out of them, but you won’t make an enemy either, and you might at least get them thinking in new ways.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In many ways I consider this to be the red-headed stepchild of the Bill of Rights. Nobody really wants it except when they do, and the only time they want it is when they want to use it as a weapon against somebody else. It only exists as a means of quieting down people who were nervous about centralized power, and since then it’s done little to no good despite the lofty goals it was originally envisioned to provide for.
The original purpose of the amendment was, as James Madison phrased it:
[F]rom looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Considering that within the twentieth century we were witness to Supreme Court cases that allowed the federal government to decide how much wheat you could grow on your own land for your own personal consumption (Wickard v Filburn), your house can be taken for private use (Kelo v City of New London), and the federales can kick in your door and snatch up your medicinal marijuana crops, even if it is legal to grow and use in your state (Gonzales v Raich). And these are all just abuses of the Commerce Clause, but I’ve harped on that one before. What I find far more interesting is the abuse of the other side of the equation.
The concern, as I see it, that was being addressed by the tenth amendment was not one of states being able to retain the powers they had enjoyed up to this point. Rather I think it is, as Madison points out, a continuation of the thread that runs throughout the Constitution and the rest of the Bill of Rights: people who had fought to free themselves from what they perceived to be an aggressive, oppressive regime and not wanting to re-create it in the new government they were now defining. One of the chief concerns and problems they had seen was that, being so far away from the seat of power, their concerns were not addressed and their complaints were ignored, and they believed that their local (and by extension state) governments would be more responsive in the event that government action would be needed at all (hence that little clause at the end “or to the people”).
This was never intended to be a carte blanche for state governments to violate the rights of citizens where the federal government couldn’t, and yet so many times that is exactly how some groups have attempted to interpret it. Waving the banner of “states’ rights”, they have tried to circumvent laws and statutes they didn’t like, usually ones that were intended to protect the rights of minority populations. While there are those who attempt to argue the historical implications of the North versus the South and economic issues that extend beyond slavery (some of which does have validity), the core of the issue was that Southern states wanted slavery and Northern states didn’t. This has come forward to us through the years as Jim Crow laws, “separate but equal”, and other forms of government imposed racism, which are times when federal power should intervene to protect the rights of minority populations against the will of the majority in a given area.
Unfortunately this same sort of abuse flows downhill in many ways; states use their power to impose all sorts of laws on their people, such as smoking bans, labor laws, property usage laws, and other means of restricting the free use of property and control over one’s own body. These laws can be and often are popular in the localities where they are passed, or at least popular enough with a large enough majority of the citizenry for that given issue (hence the phrase “tyranny of the majority”). Unfortunately there doesn’t seem to be as much of a groundswell from either the left or the right as yet to protect against these abuses.
I believe the original intent of the tenth amendment was to try to bring power closer to the people. The idea was that each state would have a limiting document similar to the Constitution (as I believe they all do) that was decided upon by the people of that state; by bringing power closer to the people, it would be more responsive, but also the limits on state power would have the same effect as the limits on federal power. This recursive limitation would flow down the chain of government power, so that ultimately the people would have power over themselves. Instead what we are finding is a constant tug of war between government actors at the state and federal level to determine who gets to make the decisions about our lives, whether any given action falls under ” powers … delegated to the United States by the Constitution” or those ” reserved to the States respectively”. Somewhere along the line the last bit about “the people” got edited out.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Of all the amendments to be interpreted and re-interpreted over the history of our nation, it may be the eighth amendment that has seen the most action, and is still in the greatest contention to date. Even the first and second amendments haven’t evolved as much, since they do not touch so deeply on the basic principles of what make us a society and what makes us human.
It is the specific clause of “cruel and unusual punishment” that seems to be the sticking point in most cases, and it is the one that has given me the greatest personal turmoil. In my youth I was a hardliner in many ways, for while I believed very much in the idea of a justice system that gave every possible benefit to potential defendants, I also believed that prisons were places of punishment, not rehabilitation. I also was very strongly in favor of the death penalty, in particular in cases of the most heinous crimes. I was convinced that there were some people the world would be better off without, and it was the right and the duty of society to deal with those people in the most straightforward manner possible.
I do not write these words with glee, nor do I write them with contrition. Rather I write them so as to set a basis of understanding of my own personal journey of discovery for those who may feel as I did then, or who feel differently than I do now. My hope is that by understanding the path that I have taken you may in some way understand why I believe as I now do, and even if you still disagree you may at least take some time to consider why you believe what you believe.
In terms of the treatment of prisoners, I used to believe they should be treated no better than the minimum necessary for survival. Food, shelter, and clothing were sufficient; after all, they had already proven they were not willing to contribute sufficiently to society to be a part of it, so why should society pay to keep them in any better style than the least necessary? I saw nothing cruel in this, although it might seem vindictive; after all, if I had to work to support myself, they were at least better off than I was. I have come to realize I at least have something they do not; I have the freedom to choose what I want, and if my choices are constrained by my circumstances, then so are theirs, and theirs are even more artificially constrained by having their liberty taken, even if that is the result of their own actions.
Further, it is a short-sighted thing to suggest that we should reduce humans to the level of nothing but animals, with nothing to fill their days but food, shelter, and the barest of covering. If they have nothing to strive for, no hope that tomorrow will be if not better than today than at least different, that is a cruelty and inhumanity all its own. It also breeds anger and contempt toward society among those who will someday rejoin that society; even if you do not believe prison is a place for rehabilitation, you must at least recognize the potential to create better or worse citizens among those who come out. Providing even simple things like books, athletic equipment, and exercise space allows prisoners a chance to engage body and mind. Television and internet access, even if it is monitored and controlled, provides a connection to the outside world that keeps them engaged and may even keep ennui and desperation from setting in. If nothing else, it shows in us a level of humanity that we condemn others for lacking.
The final hurdle for me was the death penalty. Setting aside the numerous studies showing the uneven and unjust applications and use of the death penalty, which no rational or honest person should, as well as the studies showing the economic unfeasibility of it, which counter any argument on those grounds; I feel there is an ethical case to be made for the elimination of the death penalty. It is not a simple case, nor is it an absolute one, but I believe it needs to be made.
The justification for the death penalty, if there is one, is that it is the ultimate penalty, and it is only handed out for the most heinous of offences, those for which there can be no lesser price. Even if one were to accept that premise, there are other factors to consider which make that untenable. I do accept that the death penalty is the ultimate penalty, for no matter how many years you spend in prison, there is always the hope for redemption, and there is always the chance of parole. There is no coming back from the grave.
In a truly fair justice system, we would ensure two things: first, that the penalty matches the crime; and second, that the bar for a guilty verdict matches the potential sentence. Obviously this would make for a convoluted and difficult system, as we would have many different potential hurdles for prosecutors to reach depending on the severity of a crime, so instead we settled on one that seems to work in most cases and that, at least at first blush, favors defendants: “beyond a reasonable doubt”. But is this enough when a person’s life is on the line? Is “a reasonable doubt” sufficient to make a person pay the ultimate price?
Absolute justice calls for absolute certainty. That is the conclusion I finally came to. Regardless of how you might feel about the morality of the death penalty in the abstract, or even in specific cases where you are absolutely sure someone is guilty, is it enough? Extraordinary cases make for bad law. Or to put it another way, are you unable to think of a single time in your life when you were absolutely sure about something, only to find out you were wrong? Care to bet your life on it?
Care to bet someone else’s?
I don’t. Not anymore.
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
You don’t hear much about the Third amendment these days. Everyone is more concerned with the Big Five as I think of them (First, Second, Fourth, Fifth, and Eighth) to worry too much about the rest except in theory or in extremis. And why should we? After all, when was the last time the U.S. Army knocked on your door and demanded that you put up a couple soldiers for the night? Doesn’t seem like something we really need to worry about in this day and age.
I like to look a little deeper and consider the philosophical and political ramifications of these things. As I have heard the rights of man explained in many courses and in many ways over the years, there are two approaches. The first, which is more popular (and populist) than I am comfortable with, is that as a member of a community and a citizen of a country, you owe something to your community and country simply by virtue of being a part of it. And no, paying taxes doesn’t cover your obligation. There is a presumption of first claim on your person, on your time, and on your livelihood. This would then naturally extend to a first claim on your belongings, including your residence.
The second way of looking at things is that people are born with certain rights (you might even call them inalienable). These rights exist with or without the presence of a community or a government, and in fact supersede any communal or governmental attempts to restrict or circumvent those rights. This does not mean you have no reason to participate in your broader community or government, but it does put very distinct limits on what can and cannot be asked or demanded of you.
It would seem to me that the Third Amendment more fully supports the latter belief than the former. While there is room in it (that clause “but in a manner to be prescribed by law”) for some impinging on an owner’s right to privacy in their own home, even that is restricted to times of war (and no, I don’t think the Wars on Drugs or Terror count). That being the case, there are several presumptions that flow therefrom quite logically that have a great deal of bearing on our modern lives. Not the least of these is the idea of government restrictions on how we use our own property, whether it is for housing or running a small business out of our own homes. I’m not a fan of zoning laws in general, but so long as there is no material impact on my neighbors that would be distinguishable from any other residential use, why does the government get a say?
While I’m on the subject of businesses, bear in mind that at the time the Constitution was written, for many business owners their business and their home were one and the same, and even now it’s as often a matter of semantics as reality to distinguish between a small business owner’s home and business. So why does the government get to dictate the terms of how that business is run? So long as everyone is there voluntarily, nobody’s rights are being violated. I know, being “forced” to work in an environment that allows smoking is a terrible burden. Far more so than, say, being out of work because the bar you had a job at went out of business when there wasn’t enough trade to support it… or maybe they just had to fire one bartender.
I have heard the counter-argument made, and I think it’s a fair one worth addressing, that if “every man’s home is his castle” you end up in an anarchic state where anytime you set foot on someone else’s property they can simply claim “this is my land, I make the rules, and I say you’re my slave now.” The counter to this is that the right to be secure in one’s home is based on the right of self-ownership, and that right extends to each and every individual. Violating that right in another is to surrender that right for yourself. That is the value I see in having a government in the first place: to defend the rights we each have against all comers, both foreign and domestic. However, the government that strips away those rights is no better than the brigand it is meant to defend against. I for one prefer the brigand; he is easier to bargain with, easier to fool, and if need be, easier to destroy.
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
What is it with those Founding Fathers? Once again, we have a set of words and clauses that obscure as much as they illuminate. I know, I know, some people look at this and say that it’s perfectly clear what it means. Unfortunately, I’ve had as many people tell me it clearly means one thing as I have had tell me it clearly means something diametrically opposed that the only thing I can say with certainty is that there is no “clear” meaning.
So here’s what I think this means, and I know this is not the most popular definition, but I’m going to put it out there: people have a right to defend themselves, from any and all comers. This includes state actors, foreign and domestic. Keep in mind that it was not so long before the drafting of the Constitution that a war was fought by the people, using their own weapons, to fend off an oppressive government. As the old saying goes, “fool me once, shame on you; fool me twice, national rebellion.”
For those who believe the purpose of this amendment was to establish a militia for national defense, and we don’t need that since we have a standing army or the National Guard or whatever else, allow me to point out that at the time this was written the people of this country already had plenty of experience with their government having a standing army. If you don’t believe me, check the Third Amendment. It exists specifically because of past experiences with the British army back when they were British citizens. However, we don’t need to restrict ourselves to the intent of the past; we can look to the present to consider what our best course of action is.
Consider the Arab Spring that so much has been made of, and Egypt in particular. So many people were elated when Hosni Mubarak was deposed, and they anticipated the rise of democracy. But a funny thing happened rather quickly. Turned out that it wasn’t really Mubarak who was in charge after all, it was the military. The guys with the guns. And they aren’t giving up so easily. The protesters might have won a major battle, but there’s a long war left to go.
This isn’t to say that the U.S. is the same as Egypt, not even close. But there were a lot of people who got very upset at the Patriot Act, and that’s not the only restriction on freedom we’ve seen in the last twenty years. What happens if this trend continues for another twenty years? What about if the protesters who occupied parks across the country feel they aren’t being listened to? What if they start to riot and get thrown in jail, and emergency powers are enacted to deal with the problem?
These aren’t likely scenarios, but they are possible ones, and they aren’t the only ones. They are simply a few of the ways that a government that has nothing to fear from the people can start to tighten its grip on the people it is supposed to protect, often with the best of intentions (and we all know everyone in government has the best of intentions, don’t we Messrs. McCarthy and Nixon?) And governments should be afraid of their people. Every day, in every way, governments should rule with a very light hand because they understand the price of choosing wrong.
Gun control advocates will try to claim there is a public interest in limiting the number and availability of guns, but why? How does that help? This is like any other sort of prohibition, in that the more you do it the more you drive the market underground, and the more you give profits to criminals.
The worst part is when good people start to use the exact rhetoric for gun control their opponents use in other circumstances without even batting an eyelash at the irony: “Register your guns; if you’re innocent you have nothing to worry about.” Sure. While we’re at it, let’s just go ahead and get fingerprints and DNA from everyone in the country as well. Same logic applies, right? Makes it easier to find the bad guy when a crime is committed. More accurately, too.
I’m not going to say something silly like “guns don’t kill people.” Of course guns can kill people. So can cars, knives, rocks, televisions, glass bottles, and (if you eat enough of it) my mother’s cooking. That doesn’t mean we try to ban those other things (although if anyone wants to try to ban mom’s cooking, sign me up.) We acknowledge the risks, and we do what we do in any situation: we enforce the laws we already have. If you hurt someone with a gun, you committed a crime and you should go to jail. Simple. That doesn’t mean that owning a gun should be a crime all by itself.
ADDENDUM: I originally wrote this post before the shooting in Aurora, Colorado. First, I would like to say my heart goes out to those who lost friends and family that day. To those who wonder if this changes my position on gun ownership, I regretfully have to answer no. This is a black swan event. I do not believe that extreme cases such as this make a good and justifiable case for any sort of gun control, as they are an example of the sort of individual I spoke of above who will find a way to hurt other no matter what, and punishing the vast majority of law-abiding citizens in an unreasoning attempt to protect us is specious and wrong-headed. However, in the name of fairness, I would like to direct anyone who is interested to this post by Jason Alexander, which represents the opposing view (h/t to R.L. Mirabal). While I do not agree with everything he has to say, I do believe he has some salient points to make and his post is well worth reading. If nothing else, he at least seems open to rational discussion, rather than simple finger-pointing and blindly clinging to one position. In times like these, more rationality and less blind ideology would be a nice change of pace from all of us.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Boy, that’s a mouthful, ain’t it? And it covers so much ground in so little space. Enough ground to keep us arguing over exactly what even one clause means over two hundred years later, and there are three distinct clauses that cover three, arguably very different, aspects of life. So why do all of these fall in the same amendment? And what does it all mean, anyway?
For me personally, it’s not just a matter of “these are the most important things, so let’s put them all first.” The entirety of the Bill of Rights was adopted at the same time, so there’s no reason to say any one amendment is more important than the others, and it’s kind of curious to try to mash together a bunch of unrelated ideas and hope they hold together (unless you think the Founding Fathers were the world’s first DJs. Come to think of it… dibs on that name.) There’s a common thread there, if you look past the surface and consider what the purpose of each of those acts is, and what their deeper meaning is and was at the time of the founding of our country.
I believe the First Amendment is about freedom of thought and the expression thereof. To be able to think or believe something is essentially meaningless in a society without the legal capability to express that belief, and each of those clauses covers one of the primary means by which people of the time communicated with each other. Whether from the pulpit or in the pews, by voice or the printed page, or even simply gathering in the town square and letting their voices be heard, these were the ways that people could let their thoughts and beliefs be known. So what are the implications for our modern society of that interpretation?
For starters, I believe that a strict literalist reading is just silly. To restrict the realm of free speech only to the items identified by a two hundred year old document is to assume that not only were the Founding Fathers great authors and statesmen, they were also prognosticators able to see the advances of technology yet to come and said, “Verily, that internet looks most interesting, but mayhap we best restrict the freedom of expression only to those technologies that exist in our day and age, lest we somehow bungle the whole experiment. Harrumph, harrumph.” (Because that’s exactly how they talked.)
Next, note that “Congress shall make no law respecting an establishment of religion“. That means that any law like prayer in schools, hanging of Commandments, or anything else that is an official state recognition of religion is out. This also covers pathetic dodges like attempting to make religious shrines “secular” monuments. By the same token, any attempt to restrict people from “the free exercise thereof” is also banned, so stopping folks from displaying a manger scene on their own property is as unconstitutional as banning a sign that says “God hates fags.” You don’t have to like it or agree with it, but it cuts both ways. That’s the way I read it.
Also, while it’s been said before, I think it’s worth noting and reinforcing that the First Amendment is not there to protect popular speech. That’s easy; if the majority of people like what you have to say or believe, and in particular if the people who trod the halls of power are comfortable with what you are saying and how you say it, then you have nothing to fear in terms of what you say or do being restricted. It is the unpopular speech, the vile speech, the speech we would prefer not to have to endure in our comfortable lives that most needs protection. Whether it is jerks who claim military service they never gave or idiots who deny the Holocaust, we need to protect and allow all speech. Let us not forget that there was a time in our country’s history when speaking out against slavery, or in favor of equal treatment for people of all ethnicities or genders, was equally offensive in polite society and the halls of power.
Finally, and this is the big one, expression is merely the final extension of thought. To give freedom of expression without freedom of thought is like saying “Any customer can have a car painted any color that he wants so long as it is black” (thank you Henry Ford.) Being given the choice between “yes” and “yes, please” is no choice at all. Likewise, hate crime legislation is wrong on two points: first, it presumes we can know the true thoughts and motivations of another person. Honestly, I don’t know why I do the shit I do half the time. I’m supposed to understand why other people do things? And even if I did, the First Amendment gives us the right to believe what we want. You don’t have to like it, and you don’t have to agree with it. If the way someone expresses those beliefs is a crime, then let them be punished in accordance with the crime they committed, but not for the thoughts in their head.
Unless we’re okay with making thoughts a crime.
I decided it was time I got my thoughts on paper (yes, I’m old enough that I still think of typing as writing and my computer screen as paper) about politics, specifically the intersection of politics and American life, mostly because I’m American and that’s what I know. So the first place to start is with “what is politics?” Carl von Clausewitz famously wrote that “war is the continuation of politics by other means.” I happen to disagree; I think he got it completely backwards.
What is war? War is the wholesale application of violence to achieve specific material ends. Politics (at least one definition of politics and the one most applicable to von Clausewitz) is the wholesale threat of violence to achieve specific material ends. Dress it up as nicely as you want, at the end of the day that’s the difference between the two. If you don’t believe me, try to disregard the law of your choice and see if the nice policeman simply asks you politely to cease and desist, or if he may very well at some point consider utilizing some form of force to compel you.
That being the case, it’s all about which came first, the chicken or the egg, in this case the chicken being war and the egg being politics. Another way of considering it is to take it down from the wholesale level to the retail level: personal violence used to achieve specific material ends and personal threats of violence used to achieve specific material ends. This makes things much clearer: we have archaeological evidence of hominids doing violence to each other that predates our evidence of language. Ipso facto, politics is the continuation of war by another means.
Does this mean I abhor politics and everything it accomplishes? Not at all. I believe in self-defense, I believe in just war theory, and I believe it is preferable for us to talk out our problems than for us to fight out our problems. But I also believe that when we lose sight of what the tools we are using really are, then we tend to overuse them. When all you have is a hammer, every problem looks very easy to solve. The greatness of politics is also its weakness; it removes and distances us from the immediate pains and burdens of the violence of forcing our collective will on others, which makes it so much easier to use that force. Here’s another famous aphorism from Lord Acton, and this one I agree with completely: “Power tends to corrupt, and absolute power corrupts absolutely.”
So what does this have to do with American life, and why “Anarchy X”? By now you may have realized I have certain anarchist tendencies at heart, although many hard-core anarchists would thoroughly disagree with my stated opinions regarding the value of politics and war. The X is a reference to both the Ten Commandments and the original Bill of Rights, both of which have had a major effect on the shape of politics and culture in America and will be the launching point for future posts in this series. Hopefully I’ll cover other topics as well, but if I manage to cover all twenty of those, that’s enough ground to keep me busy for quite a while. It should be a fun ride.