A Bad Week for Government Isn’t a Good Week for Liberty

There are more than a few people I know, particularly among Libertarians and libertarians (the former being the political party, the latter being the philosophy and its adherents; there actually is a difference), who are quite thrilled about the problem and scandal-riddled week the Obama administration has had recently. Between increased allegations of misconduct in the Benghazi attack, the IRS improperly (and perhaps illegally) investigating conservative groups, and the Justice Department seizing Associated Press phone records, this hasn’t been an easy one for the administration. Being overturned for the second time by an appeals court on recess appointments did nothing to improve the week from a governmental standpoint. Even Slate.com and The Daily Show, hardly a pair of right-wing nutjob pandering organizations, are piling on. So why am I not dancing in the streets with everyone else?

In short: been there, done that.

I’ve seen too many examples of “big government chicanery exposed” to start celebrating, certainly just yet. While I am a little too young to remember Watergate (I was born about a month before Nixon left office), there have been plenty of scandals, real and manufactured, since then. Abuse of power is practically endemic to government, and the worst abuse tends to happen in the hands of those who believe they are doing it for the right reasons. It’s always easiest to justify doing the bad things when you have good reasons.

As examples, I offer “Scooter” Libby and the Valerie Plame affair, Lawyergate and the Bush White House email controversy, the Ambramoff scandal, the NSA warrantless wiretapping scandal… and those were just during the younger Bush administration. There’s also the entire Monica Lewinsky affair (excuse the pun), the Whitewater controversy (including Travelgate, Filegate, and Vince Foster), and the Iran-Contra affair.

If you look at these different scandals across decades and administrations, there’s a striking pattern of similarities. First, in almost every case those who perpetrated the misconduct believed they were doing the right thing at the time (and may even try to defend their actions today if cornered on the subject). Second, the abuses are almost exclusively a matter of using government power to benefit one’s friends or hurt one’s enemies; it’s never a value-neutral thing that one can look at and honestly say “well they were definitely doing what was best for the country, even if I might happen to disagree.” And third, each abuse expands the reach of government; there’s nothing here that says “I have too much power, I better find a way to restrict how I or other manage to use it”, except perhaps in the most backhanded, Orwellian sort of way.

Oh, and in case you didn’t notice: Meet the new boss, same as the old boss. The abuse of power stretches across five administrations (If you include Reagan in Iran-Contra, which you should) and almost three decades. And I didn’t even bother to include Watergate or any other scandals from administrations back before Reagan (or most of Reagan’s scandals), because I wanted to keep it to stuff I actually remember. Let’s face it; I have more than enough ammunition to condemn both sides.

The problem, as I may have mentioned before, lies not in our politicians but in ourselves. The disconnect between what we are promised and what we receive is based on two things. First, there is the cognitive disconnect that people want the government to provide for them BUT also expect the government to leave them alone. The second is what I refer to as “My Guy Syndrome”: it must be okay as long as “my guy” is doing it. A couple prime examples of this would be the Medicare Modernization Act, the largest expansion of Medicare to that point in the programs history… passed in 2003 by Republicans, and the denial of basic Constitutional rights to a terrorism suspect… in 2013, by a Democrat. Things like this would be unconscionable if the other side did it, but since it was being done by “My Guy”, their respective mouthpieces (particularly within the government, but also in the media) tend to spin and do damage control, and the people who vote for them find ways to justify it in their own minds: “well, sometimes you have to do the politically expedient thing… you gotta break a few eggs… you have to compromise…”

And it is that exact sort of thinking that is likely to prevail in the end, despite the latest string of scandals, unless we change our culture. I don’t mean to suggest that no heads will roll; there may be a token sacrifice, and it may even be enough to get a Republican elected in the next election cycle (for all the good that will do). But until we stop allowing “the politically expedient thing” to happen, until we start holding every politician accountable, and most importantly, until we as a society acknowledge that even if Lord Acton was wrong and absolute power does not in fact corrupt absolutely, that sometimes it’s not a question of corruption but simple out of control idealism that’s the problem, it will never be a good week for liberty.

Anarchy X: The Seventh Amendment

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

To be perfectly honest, this falls into the category of “damned if you do, damned if you don’t” for me. On the one hand, I’m always a fan of keeping power as close to the people as possible, and I’ve always been a big believer in Lord Acton’s axiom of power. Give a judge a position for life, or even an elected position where most people won’t know what kind of a job he’s doing because they’ve never had a case in front of him, but hey, he’s a good guy so he keeps getting re-elected, and chances are he’s a prime target for getting bribed, same as any politician. Not necessarily directly, but golf club memberships, free trips, no interest loans for vacation homes, we all know the drill. Blackmail is always a favorite too. So jury trials seem like the way to go, especially in big money cases.

But it isn’t always that simple. Setting aside the well documented issues of race, gender, and age discrimination in jury selection (since most if not all of these studies have focused on criminal rather than civil law), there are still plenty of other issues to consider. First, there’s the question of fairness. Are we really getting justice for either side with a jury trial in some of these cases? Most of them? Any of them? As I understand it in issues of criminal law, the presumption is that if the average person wouldn’t know it was wrong, then there should be some leeway given, which is why you get a jury of your peers. Is that really what we want for cases that involve slander? Or copyright? Or patent law? These are fields that people study for decades to be specialists in, and we are asking a handful of average citizens to somehow pass judgment on which side is right.

This brings me to the second issue. When people don’t have a clear reason to take one side over the other, they will often be swayed by whoever has the better story. While there are certain basic protections against the Population Contest effect (the judge can set aside a ruling that isn’t supported by the evidence, for example), as long as one attorney can give them at least a fig leaf of cover, the jury can be lead to the “right” answer by the more persuasive story. For my money (quite literally) a good example of this is the recent decision in the Apple vs. Samsung lawsuit. In the linked article there are two examples of the vote being swung by experts telling a compelling story: the Apple attorney (and please, someone try to convince me Samsung is more popular than Apple) and the jury foreman himself, who according to ars technica said the jury “wanted to send a message to the industry at large”.

Which brings me to the third issue. In this hyper-publicized day and age, there is more than a little danger that any particular jury verdict is less about that specific case and more about something else. Whether it is sending a message, grabbing a headline, or just getting that fifteen minutes of fame that Andy Warhol promised to us all, there is no certainty in the righteousness of the common man to deliver justice when the blandishments of fame and fortune lie just on the other side of the courthouse doors. That’s no to say they won’t do their honest best or that everyone will vote one way when the answer is clearly the other way, but in the tough moment when there is no clear answer, or when you have to decide between $500,000 and $1.05 billion, that siren call is hard for anyone to ignore.

So what’s the answer? One possibility is already in use, and that’s private arbitration. I don’t mean the kind of abusive arbitration that is written into some contracts these days, “if you ever have a problem with us you have to use our arbitrator that we select, and that we pay, and oh look, he knows which side of hi bread is buttered.” I mean independent arbitrators, people who specialize in civil law and get paid out of an escrow account so they very specifically don’t know which side of their bread is buttered. Another model I heard once (and my apologies to whoever told this to me, since I can’t recall the source) is that you go one step further: you have your arbitrator (or judge), and I have mine, and there’s a third party we both agree on. Two out of three votes wins.

The truth is anytime there’s a dispute between two parties, there will never be a perfect solution that satisfies everyone (just ask any parent with more than one child). The best we can do is find a system that maximizes the good results while minimizing the bad ones.

UPDATE: For a deeper analysis of the rule of law and how private resolution can work as opposed to public systems, check out this article by Prof. John Hasnas (h/t to Kurt Bouwhuis).

Anarchy X: An Occasional Series on Politics and American Life

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.