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FAQ: What is the Objectivist View of Law and Government

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FAQ: What is the Objectivist View of Law and Government (Politics)?

(Note from MSK in May 2017: The link to The Objectivist Center in this post is no longer valid as the organization has been renamed The Atlas Society. And it seems like William Thomas might no longer be at TAS. However, for historical reasons, we are leaving the post as is. To get the current TAS information on Objectivism, please go to Objectivism 101.)

by William Thomas - The Objectivist Center

Quote
Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.

The recognition of individual rights entails the banishment of physical force from human relationships: basically, rights can be violated only by means of force. In a capitalist society, no man or group may initiate the use of physical force against others. The only function of government, in such a society, is the task of protecting man's rights, i.e., the task of protecting him from physical force; the government acts as the agent of man's right of self-defense, and may use force only in retaliation and only against those who initiate its use; thus the government is the means of placing the retaliatory use of force under objective control.  

         — Ayn Rand, "What is Capitalism" Capitalism: the Unknown Ideal, p. 19

The Objectivist political theory has three main elements, all of which draw upon the classical liberal political tradition. First, the foundation of the political system should be the fundamental right to live free from physical force. Second, government has the strictly limited function of protecting rights. Third, government power should be exercised in accordance with objective laws. Capitalism is the politico-economic system implied by these principles.

Individual Rights

The Objectivist ethics holds that each person can live and flourish through the independent exercise of his rational mind. Economically, humans flourish through production and trade, as is evident from the fact that the freest countries are either the richest countries or are getting rich most quickly. Socially, trade is the model for how people can best deal with one another.

Trade is voluntary exchange to mutual benefit. We trade money for the goods we need. But we form friendships and join clubs and associations as a kind of trade, too, investing our time, money, and energy in a relationship, for mutual enjoyment or the advancement of a shared cause. Independent people are traders because they give value for the values they receive from others. They do not mooch off of their friends and relatives, and they do not loot the resources of strangers.

It is possible to live independently only if one is allowed to do so. One's choices must be voluntary if they are to be freely made. Fundamentally, only the threat of deadly force can undermine one's ability to reason and choose. Assault, murder, theft, fraud: all these are examples of the use of force to deprive someone of freedom, of goods, or even of life. Normally, one employs one's mind to support one's well being. The threat of force makes one accept someone else's dictates, rather than one's own judgment. This was the way the totalitarian systems such as Soviet Russia, Nazi Germany, or Maoist China treated their citizens, and that is why the effect of those systems was a gray, uniform style of life, faltering production, and periodic bouts of mass imprisonment and slaughter. Because force is a fundamental threat to the independent life of production and trade, there is one fundamental principle of social organization that a just society must secure: the principle that no one may initiate the use of physical force against any other.

The principle of non-initiation of force does not prohibit its use in self-defense. Objectivism is not a pacifist philosophy. A trader does not seek to profit from the use of force, but he is able and willing to defend himself, his friends, and his goods if they are threatened or attacked. The pacifist is right to recognize that violence is not the best way for rational beings to deal with one another. But when the rational and good fail to defend themselves from those who attempt to live irrationally, through force, they are surrendering all that is decent to all that is not. Those who choose the life of the animal, the life of tooth and claw, deserve a response in kind, if that is what will eliminate the threat.

The individual rights to life, liberty, property, and the pursuit of happiness—mentioned in many American political documents—identify different dimensions of freedom and prohibit the corresponding types of force. "A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context," wrote Ayn Rand. "There is only one fundamental right (all others are its consequences or corollaries): a man's right to his own life." To live, one must be able to take action, by one's own choice, in support of one's life; that is the right to liberty. We are material beings, and so we need the freedom to keep the fruits of our labors and use or dispose of them as we see fit: that is the right to property. And we live as ourselves, for ourselves, so we have a right to pursue our own happiness.

Limited Government

The power of government is the power of the gun. It has the power to enforce a set of rules in the territory it controls, a power that is often turned against freedom. Objectivism therefore advocates a strictly limited form of government: a republican system that has only those powers and takes only those actions required to secure our rights to freedom from force. There must be a military force for defense against external enemies. There must be a system of legislation and law courts to establish the law and to adjudicate disputes in which force might be used. And there must be a system of enforcement of the law such as the police, to make sure the law is a social rule, not empty words.

No country today scrupulously respects our rights, and indeed many people do not understand what rights really are. A limited, rights-respecting government would have no welfare system and no forced pension-paying system like Social Security in the U.S. It would not have agencies with open-ended and vaguely defined regulatory powers. There would be no anti-trust law, nor zoning laws, nor anti-drug laws. This does not mean that a free society would not have unemployment insurance or pensions, or that it would not have distinctive neighborhoods or public campaigns to reduce the use of dangerous narcotics. But if people wanted any of these things, they would have to organize and undertake them voluntarily, through individual contracts and free associations. And no one would have the right to enforce his preferences on someone else through violence. Free debate and rational persuasion would have to be the means a social organizer would use, and the result would be a system of freedom, in which each person would choose for himself the best course in life and would suffer or enjoy the consequences of his choices.

Objective Law

Civil law (primarily contracts, property, and torts) is government's main positive service. Civil law provides objective, just, and peaceful means of resolving disputes among producers and traders. In so doing, it provides the context needed for reliable long-term planning and contracting, which in turn are necessary conditions for the prodigies of global capitalist production and the wonders and conveniences of modern life. Police and the armed services, by contrast, serve in a negative role: they protect citizens from threats by criminals and foreign aggressors. In both civil and criminal realms, law functions by providing clear standards for determining which actions and interactions among people are consistent with individual rights. Without these legal institutions, society collapses into warring camps; each interaction invites violent dispute; and life becomes more inconvenient, less productive, and more brutal—at best.

Objectivity in the law is crucial to its function. The laws must be clearly expressed in terms of essential principles. The highly detailed, programmatic laws so common today violate this principle, as do the vague standards under which many regulations are issued. The law must be intelligible to the people on whom it is enforced. The law courts must be structured so that objectivity and impartiality are the hallmarks of any legal decision. And the law must always be grounded in principles of rights.

Capitalism

Thus capitalism is not merely a system of economic freedom, much less an economic system favoring big businesses. In its pure form, capitalism is a social system characterized by individual freedom, diversity, and dynamism. It is a system that treats people as individuals, with no ethnic, religious, or other collective principle enshrined in the law. It is the system under which each of us makes his own choices and must take responsibility for his own life and happiness. It is the system in which long-term peace and unbounded prosperity are possible, if people will work for them. As Ayn Rand said, it is the system of separation of economy and state, just as there is separation of church and state, and for the same essential reason: because each person has a right to think and to live as his own conscience dictates, and because we all benefit from everyone having that freedom.

© Copyright 2005 - The Objectivist Center, reprinted with permission

http://www.objectivistcenter.org

The Atlas Society (formerly The Objectivist Center)

A very special thank you to our friends at The Objectivist Center for allowing us to reprint their summaries on Objectivist philosophy.

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Did Ayn Rand write or say anything about zoning laws? I thought she was not opposed to zoning laws on the condition that the laws are objective and rational. Maybe I am mistaken?

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Did Ayn Rand write or say anything about zoning laws? I thought she was not opposed to zoning laws on the condition that the laws are objective and rational. Maybe I am mistaken?

I don't think she ever wrote one word on this. NB wrote she was against professional licensing of psychologists (him). The extrapolation--for professional licensing--is obvious enough. Zoning laws are interesting and complicated philosophically even for Objectivists.

--Brant

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NB wrote she was against professional licensing of psychologists (him). The extrapolation--for professional licensing--is obvious enough.

It is not clear at all.

Would security firms (or guards) be licensed? In some states, the individual who works as a private safety provider must be licensed. In other states, the firm that employs the guards must be licensed. Some states require both. Other states -- Colorado, last I checked -- had no suich regulations at all.

As the monopoly on force belongs tot he state, it is arguable that an objective legal code would require government approval of private security providers. Restriction or prohibition of handguns might also obtain, as Rand herself suggested.

Again, what about adjudication, arbitration and negotiation? The objectivist claim is that this is a proper monopoly of the state, thus any other providers would have to be state-sanctioned, would they not? (

Also, the claim that there is an objective legal code says nothing about the rightness or wrongness of such a code. We could make theft a capital crime, as long as it was clearly spelled out for all to know. That would be "objective" law. Moreover, the objectivist claim seems to deny the right to contract. In our present legal system, you cannot have a contract that is unlawful -- say for the delivery of drugs, or for the delivery of anything during odd-numbered Tuesdays in the East 700-block of Manhattan or whatever is "objectively" forbidden.

There is no clear definition of what is or is not "objective" law or "Objectivist" law. There are statements of principle. No further development has evolved.

In terms of government what is "objective" about the mechanisms of the present Constitution, nice as they may be? Why not have the governors of the states choose the president, as was suggested during the 1780s? Is that objective? By what standard? Why not elect the Secretary of State by general poll, to a five-year term? After all, Locke's three branches of government were legislative, executive, and diplomatic. Was that objective? By what standard?

Edited by Michael E. Marotta

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NB wrote she was against professional licensing of psychologists (him). The extrapolation--for professional licensing--is obvious enough.

It is not clear at all.

Would security firms (or guards) be licensed? In some states, the individual who works as a private safety provider must be licensed. In other states, the firm that employs the guards must be licensed. Some states require both. Other states -- Colorado, last I checked -- had no suich regulations at all.

As the monopoly on force belongs tot he state, it is arguable that an objective legal code would require government approval of private security providers. Restriction or prohibition of handguns might also obtain, as Rand herself suggested.

Again, what about adjudication, arbitration and negotiation? The objectivist claim is that this is a proper monopoly of the state, thus any other providers would have to be state-sanctioned, would they not? (

Also, the claim that there is an objective legal code says nothing about the rightness or wrongness of such a code. We could make theft a capital crime, as long as it was clearly spelled out for all to know. That would be "objective" law. Moreover, the objectivist claim seems to deny the right to contract. In our present legal system, you cannot have a contract that is unlawful -- say for the delivery of drugs, or for the delivery of anything during odd-numbered Tuesdays in the East 700-block of Manhattan or whatever is "objectively" forbidden.

There is no clear definition of what is or is not "objective" law or "Objectivist" law. There are statements of principle. No further development has evolved.

In terms of government what is "objective" about the mechanisms of the present Constitution, nice as they may be? Why not have the governors of the states choose the president, as was suggested during the 1780s? Is that objective? By what standard? Why not elect the Secretary of State by general poll, to a five-year term? After all, Locke's three branches of government were legislative, executive, and diplomatic. Was that objective? By what standard?

Ayn Rand was extremely weak in writing about man's rights and government when it came to self-defense, a form of retaliatory force. If you initiate physical force against me--my corporeal person--I have the right to defend myself and self defense is defined and specified by law. If I have that right--and I do for the police can't always be there for me--I logically have the right to defend myself with something: whatever it takes to repell the attack, which might be only an overt threat. You pull a knife on me I pull out my .38 Special and kill you. There is even the concept of "citizen's arrest." You grab a six-pack from the cooler at the local convience store and run out without paying. I trip you up and hold you for the police. In both of these cases I am acting as the de jure agent for the force-monopoly state. I am also acting in self-defense. I can act in self-defense for the defense of another party. If someone is attacking you with a baseball bat I can shoot him, mybe not dead but in the leg. Etc. Now, private security provider licensing? Not necessarily. If I hire you to protect me I am hiring for my self-defense. As long as my hire only acts in my self-defense, why license him? Self defense is already there in statute. The state cannot prohibit self-defense without violating the rights of all citizens thus affected. Why? Because then it becomes a sanctioner and enabler and protector of criminality. The government's monopoly on force is actually a monopoly on law (which comes from philosophy), not on force per se. You see, it is the non-rights' violating citizenry that has the actual monopoly, for the government exists and acts with their consent.

--Brant

Edited by Brant Gaede

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Self defense is already there in statute. The state cannot prohibit self-defense without violating the rights of all citizens thus affected. Why? Because then it becomes a sanctioner and enabler and protector of criminality. The government's monopoly on force is actually a monopoly on law (which comes from philosophy), not on force per se. You see, it is the non-rights' violating citizenry that has the actual monopoly, for the government exists and acts with their consent.

Like many rightwing theorists, you are wholly ignorant.

What "statute" are you referring to?

Here is a clue: If you wake up in the middle of the night to an intruder in your home, what is the LEGAL course of action?

A. leave your home

B. shoot to kill

C. threaten to overpower

D. call the police

Answer:

it depends on the jurisdiction -- and that is why you are ignorant, Brant. You did not differntiate the law in Michigan from the law in Texas, a common failing among the theoretically empowered and theoretically encumbered, or as R2D2 said to C3PO, "mindless philosopher."

Ayn Rand wrote only about the state's monopoly on force, not at all on the state's monopoly on law (which, in fact, is a question addressed by anarcho-legalist, Wolf DeVoon).

Edited by Michael E. Marotta

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Self defense is already there in statute. The state cannot prohibit self-defense without violating the rights of all citizens thus affected. Why? Because then it becomes a sanctioner and enabler and protector of criminality. The government's monopoly on force is actually a monopoly on law (which comes from philosophy), not on force per se. You see, it is the non-rights' violating citizenry that has the actual monopoly, for the government exists and acts with their consent.

Like many rightwing theorists, you are wholly ignorant.

What "statute" are you referring to?

Here is a clue: If you wake up in the middle of the night to an intruder in your home, what is the LEGAL course of action?

A. leave your home

B. shoot to kill

C. threaten to overpower

D. call the police

Answer:

it depends on the jurisdiction -- and that is why you are ignorant, Brant. You did not differntiate the law in Michigan from the law in Texas, a common failing among the theoretically empowered and theoretically encumbered, or as R2D2 said to C3PO, "mindless philosopher."

Ayn Rand wrote only about the state's monopoly on force, not at all on the state's monopoly on law (which, in fact, is a question addressed by anarcho-legalist, Wolf DeVoon).

You can insult me or have a civil even if not entirely rational conversation. I am not going to argue that I am not "wholly ignorant," which would be implicit in any substantive reply from me to the points you have made. You can rewrite your post or not.

--Brant

Edited by Brant Gaede

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Last night I ran my first Ayn Rand Ford Hall Lecture at CRC: The Intellectual Bankruptcy of Our Age with Q&A. In the Q&A period, a questioner asks about pollution. Rand answered by stating that a person could sue and should win such a lawsuit against factories that pollute the air, if it can be proven that there is in fact demonstrable damage done to one's lungs by smokestacks. At the same time, she also argued against the penalty being so severe that the factory would have to go out of business and the whole community starve. She also made a point about community involvement (which was unclear) in terms of objective law. My interpretation of community involvement was: community participation in forming a legal judgment, or rules regarding such issues.

I think it is important to distinguish between actual legality and philosophical moral epistemology. In many cases today, since the epistemology of our culture is weak, it is no surprise that we can find laws that contradict themselves. For instance, Rand was strongly against anti-trust laws and price controls and regulation, which basically meant that a businessman could be penalized or persecuted just for entering business. If he (the businessman) charges the same price as his competitor, that could be considered collusion, if he charges under his competitor, that could be considered an attempt to monopolize the market, if he charges over his competitor, then he could be charged with taking advantage of the public. I believe this would be an example of non-objective law, because regardless of what you do, you could be in danger legally and it is impossible to know.

So now back to zoning:

From my understanding, and I am writing in reference to the Objectivist theory of rights, property rights are not absolute. One must consider the principle of property rights in relation to context. I have often seen in these conversations, that people start throwing random concretes at each other, many of them very outlandish, to make a clear, cut and dry demonstration of the principle they are concerned about. On one side, a person considers property rights to mean: I dispose of and use my property regardless of its effects on other people. On the other side, we see what looks like the initiation of force against someone who is being outrageously inconsiderate to others that are around him or perhaps is ignoring another person's rights completely.

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Donavon; May I recommend the lectures Environmental Ethics by Bill Kline from the last TAS Summer Seminar.

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Donavon; May I recommend the lectures Environmental Ethics by Bill Kline from the last TAS Summer Seminar.

Of course you can make recommendations. I will try to order it from TAS.

Thank you.

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Randall wrote:

Did Ayn Rand write or say anything about zoning laws? I thought she was not opposed to zoning laws on the condition that the laws are objective and rational. Maybe I am mistaken?

end quote

I could not find anything of substance about zoning or eminent domain. Here is a sprinkling of letters from Objectivists, Libertarians, and Anarchists. Some of them go off on a tangent but are still enjoyable reading.

Semper cogitans fidele,

Peter Taylor

Chris Matthew Sciabarra

Objectivists, such as George Reisman, criticize the zoning laws, rent controls, public housing and education, quotas, municipal health and sanitation services, franchises, and licensing laws that have victimized blacks in the long-run.

James Koontz

This admittedly gets into an Objectivist PR problem. Take the example of Galt's Gulch. There were numerous real and potential illegal activities going on there. Their trade and production would have been subject to income taxes on the value of the bartered goods and/or gold exchanged. In today's regulatory environment, there would almost certainly be some zoning regulations and power distribution regulations violated as well.

Would it have been OK to set-up a fortified Galt's Gulch and shoot down the National Guard helicopters sent in to arrest its population for refusing to pay taxes? If full scale war were then waged on this Galt's Gulch by the U.S. government- would it be OK for Ragnar to launch a ballistic missile strike against Washington, D.C.?

Michael Miller

III. ZONING

Zoning laws are inherently contradictory to the function of government. The proper purpose of laws is to guarantee your right to do what you want with your property subject only to restrictions you have agreed to in contracts with others. The purpose of zoning laws is to enable others to tell you what to do with your property without your agreement.

If you want to prevent a tall building from blocking your view, you’d better contract with your neighbors in a deed restriction to ban that possibility now, before construction starts. If they want to leave the option open because they think they would rather have the increased value of their property than a clear view, you may not enlist the government to enforce your preferences on them.

Bill Kelsey

(6) Libertarians are against the confiscation of land under the laws of eminent domain. This is done for public works projects all over the world, but in Israel private property is confiscated from Palestinians under laws of eminent domain for the purpose of settling immigrants from Russia, the US, and many other countries.

I mentioned Deir Yassin, where the Palestinian inhabitants were massacred. Today on the grounds of Deir Yassin there is an Israeli mental institution housing Holocaust survivors who lost their minds in the concentration camps. I believe this is symbolic of the situation in its purest manifestation. Both communities need our compassionate understanding. Neither needs our tax dollars or our weapons.

Bill Kelsey

From: Gayle Dean <gwdean2@home.com>

To: objectivism@wetheliving.com

Subject: OWL: Middlemen and the Moral Equation

Date: Tue, 24 Jul 2001 07:51:57 -0400

Roger Bissell (and others) argue that imprisoning an innocent man is morally justified *because* in the case of unjust imprisonment, a man can be "compensated" for it, whereas in death, he cannot.

But, accepting this "principle" means that we have conceded to government the individual's right to make his own choices and to negotiate and set his own price for the products of his labors. This is commonly known as ~enslavement~.

And this reminds me of the government's power of eminent domain in the area of real-estate. Government can condemn and confiscate property in the "public interest" -- as long as it pays "just compensation." But, I know hundreds of individuals in rural NC, who were "forced" to give up their family farms, so that the government could build Fontana Dam or (more recently) so that they could widen the road leading to it. None of these people would have sold their property willingly, for the amount of money they received as "compensation" from the government.

In fact, before any force is exercised in the process of eminent domain, government tries to purchase the property outright, but rarely are they willing to pay the amount the property owner is asking, which just goes to prove that the "real" operating power --is force! Saying that anyone is being "justly compensated" in these kinds of transactions, which are backed up by coercion -- is a contradiction in terms.

And I personally, would not sell myself into prison for anything less than about twenty-thousand dollars per day...more if there were a chance of my being forced to have sex with diseased criminals:-) But, since government has unlimited power, and (by its very nature) has little respect for individuals, I'm sure the state's idea of "compensation" in the case of my imprisonment, would be similar to their idea of compensation in the realm of eminent domain, i.e., never equal to the amount an individual would negotiate to trade for in the free market -- if he were not subject to government force in the matter.

A government that can imprison and enslave us -- as long as it pays us "compensation" -- is a government that owns us. When we no longer have freedom to control our own property and lives and to negotiate on our own terms-- we become slaves. Accepting the notion of government compensation as a principle-- means accepting that we live -- ONLY by permission of government.

Gayle Dean

"It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." Robert H. Jackson

(1892-1954), U.S. judge.

From: Ralph Hertle <ralph.hertle@verizon.net>

To: objectivism@wetheliving.com

Subject: OWL: Re: Native Americans & un-owned US govt land

Date: Wed, 17 Oct 2001 21:07:04 -0400

OWL:

Prior to the arrival of the Europeans the population of the Native Americans reached as high as 500,000 to 2,000,000 persons. There were many tribes all across North America. Some tribes and persons were nomads, and most were not. The NAs of Central Illinois lived in wooden towns. The NAs of Ohio lived in houses and communities, and their system of representative government formed the basis for the US Congress. The Hopi people of the Southwestern US area lived in multi-storied apartment buildings.

Of course, the NAs had the concept of property, and to various extents there were various innovations, developments, and applications of it.

An acquaintance of mine told me that Ayn Rand said in her lecture at West Point, called, "Philosophy:

Who Needs It", in the Q and A session, that the Native Americans have no property rights ..... because they were a bunch of nomads that did not have the "concept" of property rights.

The NAs were definitely not all nomads, and the facts clearly support that. Any claim the NAs were all nomads would involve the fallacy of over-generalization in that the characteristics of a part should not be extended to include all the other different parts.

Regarding property and property rights, I don't doubt that there were a number of different concepts of property as well as different arrangements for dividing land, usage rights, renting, and buying and selling goods or property, that were used by the various tribes. The Nas had nothing as sophisticated as the concepts of the Europeans, however. Any claim that the NAs did not have the concept of property is impossible to support by means of a reference to the facts. Surely, that if one NA did not have a concept of property rights, and that some did, such a claim would involve over-generalization.

I think the issue is not what concepts of property the NAs had, rather, that the Americans should have extended their concepts to the NAs as a gift. A gift of law, liberty, civilization, freedom of action, and productivity. American concepts of property should have been employed to identify and upgrade or enhance the concepts of property that were then in use by the NAs. For example, the Americans should have helped the NAs to find out where their tribe's, group's, or individual's land was, mark it out on the land, map it, register the deeds, and respect it. Lack of the English language would have prevented the NAs from registering deeds to their lands, and the Americans should have done it for them and talked them through the process.

The form of the land that was ultimately given to the NAs by American legislators was the prison reservation. The concept of property that was used by the nomadic American settlers to locate the NAs was the concentration camp.

The USA still uses concentration camps, e.g., to contain Japanese Americans during WWII, and also, to contain Caribbean immigrants and ex-Cuban prisoners during the 1970s & 80s (cite needed). WWII soldiers were POWs, and that was a different matter.

I would ask who's concepts of property were superior.

Except for the reservations, the NAs were eventually totally included into the fabric of America. They were surrounded, and there was nothing better for them to do than to work within the American system and to reap the benefits of the American society.

The opportunity continues to exist that America can formally extend its concepts of liberty, rights, and property to the descendants of the Native Americans.

The lands that are now being used for their natural resources, or as nature preserves, could, under NA ownership and management, become valuable places. Wealth could be generated in new ways that US government bureaucracies and curators could never imagine.

State governments could create programs similar to the Federal program.

America could be the first nation in all history to become 100% privately owned.

I searched using the keywords, native american, native, and, Indian, and "The Objectivism Research CD-ROM", by Philip Oliver, and I was not able to locate any information regarding Ayn Rand's views for this thread. Nor was I able to locate Rand's West Point speech that includes a reference to Native Americans.

[Moderator: Ralph added in a subsequent message: "Greg Johnson pointed out to me the published source regarding Rand's West Point speech that has a reference to the Native Americans: He says that the speech in question was available as a CD from Second Renaissance books. Thanks Greg."]

While we are at it the concept and practice of the concentration camp should be banned by the Supreme Court under several principles of the US Constitution and the Bill of Rights. Also, I think that a Presidential

Proclamation could be ratified into law by the Congress, for example, in the same way as Lincoln created the Emancipation Proclamation. It would be ludicrous to call such entities as concentration camps property, especially in a free society. Congress needs to define the rights of all types of peoples, or groups that are confined, and what means or recourse of action that any such individuals would have in a court of law.

The argument that since virtually no American during the 18th and 19th centuries had a Birth Certificate, pedigree, or any sort of legal documentation, that they were not legal residents of the US. Hence they had no rights as citizens any more than did the Native Americans. The argument could be continued, however, the principle that in America all rights are inalienable, meaning the rights of all the people, will ultimately hold true.

Is there a lawyer somewhere in America who could bring the instant matters of government land and the Native Americans to the attention of the Supreme Court or to the President?

Ralph Hertle

From: Ralph Hertle <ralph.hertle@verizon.net>

To: objectivism@wetheliving.com

Subject: OWL: Re: Native Americans & un-owned US govt land

Date: Sun, 21 Oct 2001 17:01:23 -0400

OWL:

I was been told off-list that I had not described the concept of private property rights that any of the NAs held. Nor had I stated why the descendants of the NAs have any claim on the natural resources their descendants had no knowledge, of, e.g., oil and minerals. That is basically true. I think that it the property rights concept of the NAs is irrelevant. Also the mineral rights is not an issue since the rights to minerals are part of the land. In other words, the minerals that are part of the land are generally transferred with the land unless any discovered minerals or rights to same are transferred by means of contracts, e.g., by sale or lease.

A further explanation of my proposal to privatize all socialistic land in the US, and to, at the same time, formally extend the principles of American rights and Constitutional liberties to the NAs, which morally should have been done, and to their descendants follows.

.............................

Readers may be interested in the earlier post that I made on, Mon., Oct. 22, 2001, 1:30a, that had the subject,

line, "Re: Native Americans & un-owned US govt. land" This post is a further explanation to that earlier post. That post dealt with the "...American concept of inalienable rights...", and with a way to deal with the matter of creating new property rights where no sophisticated or continually existing rights of private property have been generally recognized.

The interesting concept of the proposal was that it permits the socialistic land of the USA to be converted to private property. The land would then become a productive part of the free-enterprise system. The land

would be moved into the private ownership realm at no cost to any American, nor would existing mining, leases, rentals, and other land use contracts be discontinued.

Nor would the land be given away, sold or auctioned, to any special interest groups. The successor owners, that is the new owners (there not having been any owners according to popular property theory and modern non-NA preferences) would honor the existing contracts, e.g., leases or easements, by amending the appropriate papers, filings, licenses, and whatever. There would be costs to the creation and tracking of the new corporations, by government agencies or private contractors, of course. Capital Gains and income taxes could be waived for the one-time event. There would be stock underwriting and transfer and legal fees. No real estate sales would be initially involved, only a creation and identification of shares of stock.

Included in the land would be the rivers, lakes, and coastal waterways that lie upon US Government land as part of the government lands to identified anew as private lands. All these lands would be privatized by incorporation as the new assets of private stock companies, and by the acceptance by the distribution of shares in the incorporated companies equally to all descendants of Native Americans. Thousands of corporations would exist that would reflect the great number of parcels. The parcels should be made as large as possible, however the task of identifying the individual pieces of land, and creating deeds, and registering the deeds with the appropriate state governments would be a significant task. Fortunately, the US is up to its top in the number of attorneys it has, and there are plenty enough to do the work. The record keeping necessary would be possible due the great advances made in computers, software, IT, RE management, and GIS technologies applications.

I will reiterate at this time that it makes no difference, whatsoever, what form of ownership the NAs had. The important legal theory would be that the legal domain of the liberties of America had been extended to encompass and embrace all the NAs and their descendants. The rights and principles of American liberty should be those that should have prevailed.

Nor is the principle of a claim relevant. Nor should the claim to any wealth, or to the wealth of others, especially the wealth that was considered to be wealth by the NAs, as expressed by Americans, and that was taken by the Americans, be considered to be valid. Claims imply the right to take, use, improve, and to own any property. But there must first be rightfully owned property. I will grant that many, if not most, settlers were as honest as the Nas in their desire to create a life from the land. The NAs had been purposefully using and developing the land to the benefit of creating a living since ever; and the property acquiring and owning settlers have been purposefully using and developing the land to the benefit of creating a living for themselves ever since. Measurement omission should prevail.

The sophistication of the possible concepts of property has grown considerably from the early days. The rationality of current corporation and real estate ownership laws, in general, is considerable.

The Americans claimed and took, and then they stopped taking. What they didn't take they didn't return or refuse. They made it into socialistic, e.g., institutionalized government owned and operated land preserves or government business entities.

What is important now is that the land which has not been so claimed, improved and taken by private Americans should be simply released to the descendants of the NAs, and that it should become deeded land that is privately owned for the first time in history.

No American, other than the descendants of the NAs, has a claim on the untaken lands. The lands in question, insofar as private ownership in a free enterprise system, are untaken privately. The improvements made to such lands, e.g., the construction of an airport, should remain the property of the government, or leaseholders, for example, and it is the land that should be made private.

Non-NA private persons also have no claims to the ownership of the lands by merit of a de-facto non-taking of the land, and the US government has ensured that the land be continued as non-owned land. That is, in spite of the claims of the occupation of, working and improving the land, or specifically using the land, that the NAs had.

Rights to the natural resources should remain with the land. Leases, easements, contracts to create certain improvements, and other contractual rights to make and keep certain improvements that have been agreed by means of contracts between the party and the government or filed with the government, e.g., possibly some mining, travel, or water rights, should remain in effect. The government would have to create the deeds to any improvements that it created, or to make contracts with the new owners to continue certain types of uses.

Their would, no doubt, be numerous special claims, and the Courts would be busy. I haven't devised a scheme that would embrace the reservations that are owned by the NA tribes or nations. I suggest, provisionally, that stock corporations be created for the reservation entities, and that the shares be given to all residents who now or ever did reside on such reservations. Some Objective laws would need to be written, and possibly the NA tribes would have a totally different approach. Quite possibly the reservation lands should simply be given to the tribal managements in the form of stock companies, and they would become the directors of the companies. That is a possible exception to the general principle of the giving of all of the un-owned government lands to all of the descendants of the Native Americans. In that way the concepts of American liberties would be formally extended to include the all the reservations. The matter of Sovereignty would need to be discussed, and maybe some type of democratically renewable merged status could be devised. The privatization of all public lands would be accomplished in the same act of law that would enable all the

descendants of Native Americans to be the participants in a new process, that of protected American Liberty, individual rights, and free-enterprise.

Giving is the wrong word. The process is the benevolent recognition and granting of American liberties to those who would have properly been the beneficiaries to such a recognition and granting, and to their descendants.

All Americans would benefit greatly by the new burst of productivity that would be created by the new corporate owners. The process has no relationship to the particular monetary or other values of any lands for any reason. Measurement omission applies. The shares would be evenly divided, and each descendant of a Native American would get one share, or an equal number of shares, in every corporation, and every corporation would own significant parcels or lands that would include all the un-owned government land. For the first time, the lands would be cared for and made productive by private individuals and their companies. The new owners would be responsible for the use, upkeep, and commercial development of their lands as they see proper.

I make no claims to having all the answers to all the possible consequential problems. I think that the disposal of, or the privatization of, all of the un-owned government lands should be accomplished with as strict adherence to, extension of, and application of, the principles of the domain of American Liberty, individual rights, private property, and free enterprise as is humanly possible.

Ralph Hertle

From: "Michael DeVault" <michaeldevault@techbroker.com>

To: <atlantis@wetheliving.com>

Subject: ATL: (no subject)

Date: Thu, 29 Aug 2002 13:51:59 -0500

----- Original Message -----

From: "Jimmy Wales" <jwales@bomis.com>

To: <atlantis@wetheliving.com>

Sent: Thursday, August 29, 2002 10:51 AM

Subject: Re: ATL: Native American Terrorists

>Michael DeVault wrote:

Define substantial. What if the crops are on a seven year cycle? For six years, the land appears unused. Then suddenly on the 7th year, there's a crop. Is that substantial use?

>

> Yes, it is.

>

> > What if it's a religious shrine of sorts? Is that substantial?

>

> Yes, it is, if it really is a religious shrine.

>

What if it's a religious area a la the sacred tribal grounds of the Cherokee? The land is not "used" save for the occasional holy ritual, yet it is very much "claimed" as theirs.

Most of the border wars were not fought over settlers claiming unused land. If you read your history, the Native Americans could really care less about most of the land we "confiscated" as they claim now. But where we ran into conflicts was the point at which we began to claim "sacred" land--land that wasn't used but was considered a shrine of sorts—e.g. the realm of the spirits...land of the Gods in California, etc. This is where we began to see substantial troubles.

Was that not theft of property?

>Who defines substantial, when substantial is such an *obviously* arbitrary word?

>

Ayn Rand answered the question "Who is the final authority in ethics?"

> http://www.freedomkeys.com/ar-whodecides.htm

(puts on Devil's Advocate hat here)

"One's own mind" isn't a good enough authority for establishing who owned land confiscated three hundred years ago. "One's own mind" is completely arbitrary. Are there *no* standards? What if by "one's own mind" someone decides that you are not using the back half of your back yard "substantially" and lays claim to it? If they plant a crop or build a house, is that land now theirs since they used it substantially?

Another very dangerous trap we run into is what if someone would use the land MORE substantially than you?

>I would give the same answer to your question. "Metaphysically, the only authority is reality; epistemologically -- one's own mind."

Metaphysics=reality.

Epistemologically=one's own mind.

I agree with this totally. But when discussing the ownership of property are we discussing metaphysical principles or epistemological principles? In the case of private property there's a lot at stake as far as objectivity of the parties goes.

>If I sweep my arm about and claim the unused portions of the Andromeda galaxy as my own, people will rightly laugh at the nonsense of the claim. When early inhabitants moved to previously unused (by humans) land, and worked it, people would rightly laugh at anyone who claimed that their ownership of that land is invalidated.

Claiming the Andromeda galaxy as your own would not make it so. People might laugh...but what if you were to say, traverse a section of ocean frequently and repeatedly. That's certainly substantial use. Does this make it yours?

I walk the same path across a bridge every day. Since it is "public property" (note the quotes, purists), it is thus "my" property. Since I use this path DAILY...is it substantial? Does it thus become my property?

What it sounds like some Objectivists advocate is property=first occupation. Other's advocate=first use.

Md

From: "Jeff Olson" <jlolson@cal.net>

To: "atlantis" <atlantis@wetheliving.com>

Subject: ATL: European Technological and Moral Superiority

Date: Fri, 30 Aug 2002 20:28:32 -0700

Keyser noted:

<<The Indians who inhabited the area in which I live allegedly had a history of claiming that no one can own land.>>

Keyser, as a fellow Minnesotan you should of course be aware that that all the *real (Dakota) men* migrated West, to take up horse-riding and frolicking with bison (as well as changing their name to "Lakota":).

This point has been raised innumerable times, and I think it falls markedly short of capturing the true position of both Native Americans and of those who advocate communal as opposed to individual ownership of land. No American Indian tribe that I'm aware of advocated individual ownership of land, but it was commonplace, nonetheless, for them to consider certain areas "their" -- that is, the tribe's -- land. To say that Native Americans didn't advocate, strictly speaking, "private property," is not to say that they exercised no proprietary claims with respect to land. I believe their proprietary claims amount, in essence, to a form of communal ownership, and that their conflicts with Europeans amounted basically to communal versus private ownership. To my knowledge, neither Objectivism nor libertarianism consider private ownership as pre-eminent, in terms of rights-theory, to communal ownership.

<<I think it was Shane who brought up the idea of claims of ownership involved in frequently traversing an ocean. If a more advanced species from another galaxy came to Earth and inquired about ocean ownership,

the bulk of humanity might likely reply, "No, we don't own the oceans, no one does, no one can." Would the aliens then be within their rights to claim ownership of the oceans, and to defend them against us? Would they be wrong in claiming that we humans do not have the right to own something as a group while we oppose individual ownership of the same thing?>>

I was impressed by Michael's point, and even more so by this strikingly powerful hypothetical by Keyser. Having raised the issues of a "property-less" use of some resource in a previous post, in large part I think he answers -- in my opinion, even rebuts -- his own question. But what of the conflict between cultures with different beliefs, and different levels of technological/philosophical development?

Surely, having more advanced technology advances us not one iota toward superior rights status, unless we wish to embrace "might makes right." But what of philosophical superiority, of the kind manifested in a superior grasp of individual rights?

Well, undeniably, the Europeans brought with them far more advanced concepts of individual rights. After all, Europe and Great Britain were home to Locke, Spencer, Rousseau, and Smith, among numerous others. The Indians, as Ayn Rand was fond of saying, hadn't even invented the wheel.

The Europeans, however, being a far more creative lot, invented, along with the wheel, the divine right of kings (and/or queens) -- while the Native Americans believed, by and large, in a more democratic -- a more *voluntary* -- scheme of social guidance. The Europeans invented conscription, while Native Americans believed, in general, in relying on *voluntary* associations. European rulers and their adjuncts could rightfully, if not freely, order the death of individuals who offended them. American Indian "chiefs" or "councils," on the other hand, generally held no such power. Europeans believed in the right of taxation, whereas most if not all Native Americans relied on *voluntary* contributions.

The Europeans invented "total war," and "firebombing," while the Native Americans usually preferred horse-theft or very limited warfare (in principle). The Europeans raised deceit and corruption to political art forms; for the Native Americans, one's word or "treaty" was one's sacred oath, to be generally maintained even at the cost of one's life.

But as I said, the Europeans were unquestionably superior in their grasp of individual rights, which the American Indians should've duly recognized and humbly capitulated to.

Iyotanwaste,

Chief JeffLO

From: "William Dwyer" <wsdwyer@attbi.com>

Reply-To: <wsdwyer@attbi.com>

To: <atlantis@wetheliving.com>

Subject: ATL: Merciless Indian Savages (was "European Technological and Moral Superiority")

Date: Fri, 30 Aug 2002 23:54:36 -0700

Jeff Olson wrote,

“To say that Native Americans didn't advocate, strictly speaking, ‘private property,’ is not to say that they exercised no proprietary claims with respect to land. I believe their proprietary claims amount, in essence, to a form of communal ownership, and that their conflicts with Europeans amounted basically to communal versus private ownership. To my knowledge, neither Objectivism nor libertarianism consider (sic) private ownership as pre-eminent, in terms of rights-theory, to communal ownership.”

“Private” ownership is distinguished from “communal” ownership only insofar as “communal” is taken to mean "government expropriated" (as in “Communism”). But, in that case, libertarianism does indeed consider

“private” ownership pre-eminent to “communal” ownership.

If, however, “communal” ownership is taken to mean a form of legitimately acquired property that is owned in common, then it constitutes “private property" in the fullest meaning of the term. "Private," after all, does not necessarily mean “owned by one and only one individual.”

Keyser Soze had previously written:

"I think it was Shane who brought up the idea of claims of ownership involved in frequently traversing an ocean. If a more advanced species from another galaxy came to Earth and inquired about ocean ownership,

the bulk of humanity might likely reply, 'No, we don't own the oceans, no one does, no one can.' Would the aliens then be within their rights to claim ownership of the oceans, and to defend them against us?"

Jeff commented,

"I was impressed by Michael's point, and even more so by this strikingly powerful hypothetical by Keyser. Having raised the issues of a "property-less" use of some resource in a previous post, in large part I think he answers -- in my opinion, even rebuts -- his own question."

I would answer Keyser's question as follows: Yes, if the more advanced species had a way of subdividing and of using the oceans productively. If, for example, we were able to farm certain parts of the oceans, then there is nothing to suggest that we would not be justified in appropriating those parts as private property.

One of the economic downsides to UNowned natural resources is that they tend to be overused and not adequately conserved and replenished. If oceanic resources (e.g., whales and other marine life) were private property, they would not be hunted to extinction or otherwise uneconomically depleted.

Keyser continued,

"Would they [the more advanced species] be wrong in claiming that we humans do not have the right to own something as a group while we oppose individual ownership of the same thing?"

Be we do not “own” the oceans “as a group.” At present, they are simply an unowned natural resource.

Jeff then proceeds to give his own, largely apochryphal, characterization of the noble savage, as against the allegedly corrupt and tyrannical Europeans. He writes:

“The Europeans, however, being a far more creative lot, invented, along with the wheel, the divine right of kings (and/or queens) -- while the Native Americans believed, by and large, in a more democratic -- a more

*voluntary* -- scheme of social guidance. The Europeans invented conscription, while Native Americans believed, in general, in relying on *voluntary* associations."

In fact, Indian tribes were a blood thirsty lot, who invaded each other’s territories and made slaves out of their enemies long before European settlers arrived on this continent.

As Dinesh D’Souza notes, “For several tribes in the American northwest, slaves comprised between 10 and 15 percent of the population. The Cherokee employed ‘slave catchers’ to retrieve wounded combatants from

other tribes, although the Cherokee preferred to kill enemies rather than take them captive. In some Indian tribes, slaveowners proved how wealthy they were by how much they could afford to consume and waste:

large numbers of slaves were routinely killed in potlatch ceremonies. Among the Tupinamba of Brazil, who adopted an especially harsh version of this practice, slaves were segregated from the community, then

subjected to ceremonial denunciation and abuse, then taunted with the possibility of escape, then ritually hunted down, massacred, and eaten.”

[_The End of Racism_, p. 73.]

Much is made of black slavery at the hands of whites. What is not so well known is that “Indian tribes such as the Choctaws, Chicasaws, Cherokees, Creeks and Seminoles all owned black slaves. Indeed, Cherokee law protected property rights in African slaves. The _Cherokee Phoenix_ carried announcements and advertisements for slaves in the early nineteenth century...."

"The Cherokee, who were excellent trackers, also volunteered their services to catch black runaways for white owners, although some plantation owners were reluctant to employ Cherokee slavecatchers, because they frequently killed their fugitives. Another slaveowning tribe, the Choctaw, elected to fight on the side of the American South during the Civil War. Although slavery was abolished in most of the United States after the defeat of the Confederacy, the Choctaw and other tribes continued to keep slaves until 1866, when these tribes signed a treaty with the U.S. government in which they reluctantly agreed to suspend the practice.” [ibid., pp 75,76]

Not only did the American Indians hold blacks as slaves; they treated women as beasts of burden. Historian Francis Parkman writes: “Female life among the Hurons had no bright side.... On the march it was she who bore the burden; for, in the words of Champlain, ‘their women were their mules.’”

Thomas Paine confirmed this observation: "The women among the Indians are what the Helots were among the Spartans, a vanquished people, obliged to toil for their conquerors." [ibid, p. 108]

So much for the native Americans' alleged reliance on "voluntary associations"! As Thomas Jefferson wrote so eloquently in the "Declaration of Independence," the King of Great Britain "has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions."

Bill

From: "George H. Smith" <smikro@earthlink.net>

To: "*Atlantis" <atlantis@wetheliving.com>

Subject: ATL: Re: European Technological and Moral Superiority

Date: Sat, 31 Aug 2002 02:38:01 -0500

Jeff Olson wrote:

"No American Indian tribe that I'm aware of advocated individual ownership of land, but it was commonplace, nonetheless, for them to consider certain areas "their" -- that is, the tribe's -- land. To say that Native Americans didn't advocate, strictly speaking, "private property," is not to say that they exercised no proprietary claims with respect to land. I believe their proprietary claims amount, in essence, to a form of communal ownership, and that their conflicts with Europeans amounted basically to communal versus private ownership. To my knowledge, neither Objectivism nor libertarianism consider private ownership as pre-eminent, in terms of rights-theory, to communal ownership."

The best book on this subject that I know of is Francis Jennings, *The Invasion of America: Indians, Colonialism, and the Cant of Conquest* (Norton, 1976).

As Jennings explains, the issue of how Indians viewed land ownership is more complex than is commonly supposed. Some tribes did recognize a de facto private ownership of land. Quoting Jennings (p. 136):

"Early seventeenth-century English observers had quickly concluded that New England's Indians held land among themselves under customs not very different from the relationships prescribed by English law and custom. Explicit testimony exists for the Wampanoag, Narragansett, and Mohegan 'nations,' and circumstantial evidence implies like customs among the Massachuset and Pequot 'nations,' to the following effect. The grand sachem of each Indian nation held a jusrisdictional right, like that of eminent domain, over all the territory of the nation. Subordinate sachems held property rights in hunting tracts and fishing stations

within the national territory. Early data indicate that cropland was held as commons, the sachem assigning annually the land to be tilled by each family; however, as native institutions adjusted to English practices, croplands seemed to have become fixed in the possession of their cultivators."

The following passages (from the chapter titled "The Deed Game") are also interesting: :

"The land that was *vacuum domicilium*, or 'waste," in English eyes was completely covered by Indians with property and jurisdictional rights. Generally, when Englishmen were willing to recognize these customary

rights, Indians were willing enough to sell functionally surplus lands. Some students have doubted that Indians understood how they were dispossessing themselves by sale of land to Europeans. Perhaps that was so in the earliest transactions, but Indian sophistication grew rapidly. European power soon drove home the lesson that a land sale involved the full and final alienation of right." (136-7)

And:

"t was not possible for an free Indian, living under his independent tribal government, to sell only his property, unencumbered by jurisdictional ties, to a Euramerican living under a colonial government. Such a transaction was impossible in law. The Euramerican would not accept the sanctions of the tribe; when he bought, he intended to put his land under the jurisdiction of his own colonial government, and to secure recognition of *that* government of his property right. Neither was it possible for an Indian to enjoy property under colonial law while he refused to subject his person to colonial jurisdiction. There was a sort of legal valve controlling the conveyance of land so that it always moved from Indian to Englishman and never reversed direction. This situation was peculiar to colonialism; it did not apply between subjects of different European nations. A Frenchman, for instance, might buy an English estate while still preserving his French

nationality and allegiance, and his property right would be recognized by English law." (129)

Lastly:

""[C]olonials everywhere used numerous identifiable devices (and doubtless others) to seize Indian property with some show of legality. One method was to allow livestock into an Indian's crops until he despaired and removed. Even when an Indian uncharacteristically fenced his cropland, he found that there was something nocturnally mysterious that did not love an Indian's wall. The Indian who dared to kill an Englishman's marauding animals was promptly hauled into a hostile court. A second method was for Englishmen to get the Indian drunk and have him sign a deed that he could not read. A third method was to recognize a claim by a corrupt Indian who was not the legitimate landlord and then to 'buy' the land from him. A fourth method, highly reminiscent of feudal Europe, was a simple threat of violence. A timorous Indian -- there were many -- would turn over his property for no other reason than the 'love and goodwill' he bore the man behind the gun; he was then permitted to remain as a tenant on a corner of the land he formerly had owned. A fifth method, which seems to have been a favorite in New England, was the imposition of fines for a wide variety of offenses, the Indian's lands becoming forfeit if the fines were not paid by their due date. The offenses ranged from unauthorized riding of an Englishman's horses to conspiracy against English rule. Small or great, the offense was likely to incur a fine larger than the offender could probably pay.

An Englishman would 'rescue' him from his straits, paying his fine for a short-term mortgage on his land and later foreclosing." (144-5)

Ghs

From: "George H. Smith" <smikro@earthlink.net>

To: "*Atlantis" <atlantis@wetheliving.com>

Subject: ATL: Re: European Technological and Moral Superiority

Date: Sat, 31 Aug 2002 12:02:51 -0500

Jeff Olson wrote:

"George,

"I just wanted to publicly thank you for your enlightening commentary and references, both to this and my "Overview...Intention" post...."

Yo-hah.

("The silent solemnity remained unbroken throughout a treaty conference, except when a chief invited his company to intone a ritual 'yo-hah' to show hearty agreement or gratitude." Francis Jennings, *The Invasion of

America,* p. 122.).

Ghs

From: Ellen Stuttle <egould@mail.hartford.edu>

To: atlantis@wetheliving.com

Subject: ATL: Re: Merciless Indian Savages

Date: Mon, 2 Sep 2002 17:03:41 -0400

Debbie,

That's much for the material you looked up and typed. It squares with what I remember from my Indian-studies days -- at one point I knew the names and locations and histories and linguistic stock and details of the customs of all the North American tribes, so this whole line of thought is bringing back memories.

A question I've been wondering about recently is the exact speed with which the technological revolution following the advent of the horse proceeded. (Modern horses weren't native to the Americas, though the horse line first evolved here, but then the ancestors of the modern horse crossed the land bridge to Asia, and became

extinct in NA.) Our image of the Indians tends to be that of the Plains tribes, horseback and in full war regalia, but the horse culture only developed *after* the Conquistadores came and some of their horses escaped. Thus it would only have been a couple hundred years between the time the NA tribes acquired horses and the time when settlers pushing westward encountered the Plains horse tribes. Just how many horses might there have been by then? Interesting biological-mathematical question.

Anyway, thanks a lot for providing the excerpts.

Ellen S.

From: "Robert Campbell" <robertlcampbell@earthlink.net>

Reply-To: "Robert Campbell" <robertlcampbell@earthlink.net>

To: "OWL" <objectivism@wetheliving.com>

Subject: OWL: Land ownership and American Indians

Date: Tue, 17 Sep 2002 19:43:09 -0400

Amy Hayden asked about the application of Lockean principles of land ownership to territory that was once held by American Indians.

The answer, of course, is that such principles were most often not applied--European settlers simply grabbed the land by force.

You won't find a satisfactory treatment of this issue in Ayn Rand's writings. Rand seems to have known very little about American Indians, and to have thought about them in images--most of them unfavorable. More

generally, she believed that some human being are "savages," a term that contemporary anthropology has good reason not to use. From her point of view most American Indians were savages, and to her that apparently meant that they deserved what they got.

A much more nuanced treatment of the whole matter can be found in Murray Rothbard's history of the American colonies up through the Revolution (a fifth volume that would have continued up to the adoption of the Constitution was never published).

There are discussions of relations between settlers and Indians throughout the 4 extant volumes. A general statement of Rothbard's position can be found in Chapter 10 in *Conceived in Liberty* Volume 1 (New Rochelle NY: Arlington House, 1975). The chapter is titled "Relations with the Indians" and covers the way European settlers treated American Indians in the Virginia colony during the 1600s.

"Generally we may say that the native American Indians regarded the newcomers with a mixture of brotherly kindness and eagerness to make contact with the world outside; this, however, was countered by hostility based on the well-founded fear that the colonists were out to seize their lands. The whites generally regarded the Indians as possessors of land ripe for expropriation. This attitude of the whites was partially justified, as

Indian land was typically owned not by the individual, but by the collective tribal unit, and furthermore was inalienable under tribal law. This was particularly true of the land itself as contrasted to its annual use.

Furthermore, tribal law often decreed land ownership over large tracts of even unused acreage. Still, however, this land inequity provided no excuse for the physical dispersion of individual Indians from their homes and from land actually used, let alone the plundering of their crops and the slaughtering of the Indian people." (Rothbard, Volume 1, p. 95).

Under conditions of maximum good will, incompatibility between the understanding of land ownership that prevailed in many of the tribes (laws and customs, of course, varied from one tribe to another) and the views that prevailed among British settlers would have led to some conflicts. Moreover, Indian tribes often seized land from other Indian tribes through conquest (and this kept right on happening after Europeans began to arrive). But, as we all know, good will was in short supply. Indians were often massacred or driven into exile, and their land seized.

Rothbard's projected history did not reach so far, but a particularly nasty episode in this saga was the expulsion of the Cherokees from northern Georgia in the 1830s. The Cherokees were booted out by the government of Georgia, with support from the President of the United States and the US Army, even though members of the tribe cultivated farms in fixed locations, many lived in towns, many read newspapers that were published in their own language, and in general they had sought to keep out of fights with white settlers. Dispossessing the Cherokees and forcing them into exile in Oklahoma was as flagrant an act of plunder as you're going to find--as some white Americans (but not nearly enough of them) recognized at the time.

As for property rights in land worked by slaves, I've thought for a long time that the appropriate response after the Civil War would have been "40 acres and a mule": break up the plantations and turn them over, piece by piece, to the people who had been forced to work them. But the advisability of the Civil War (and its 620,000 war dead) aside, the political will to push Reconstruction this far was lacking. Hatred of blacks was so widespread in the North (and, I might add, so assiduously cultivated by the Democratic politicians of the period) that such land reform couldn't be carried out between 1865 and the end of Reconstruction in a corrupt political bargain in 1876. (If you think the vote-counting in Florida during the 2000 election smelled, you should read about the vote-counting in Florida during the 1876 election.)

Since we are talking about aspects of American history that are doleful to contemplate, let me add that until the 1800s there was not a whole lot of *moral* opposition to conquest or to land seizure or to slavery anywhere—at least not on the side that had the advantage in numbers or warlikeness or technology. Unfortunately, what is remarkable is not how long it took to end slavery in the West, or to give land seizure a bad name (finally, when Europeans arrived in the New Guinea highlands in the 1930s, they did not seize desirable land from the native farmers). What is remarkable is that slavery and land seizures were eventually rejected in the West. Movements to abolish slavery do not seem to have arisen anywhere else (for instance, I

have never heard of an indigenous Islamic movement to end slavery). In fact, it was the threat of a visit from British gunboats that helped to end slavery in many a country outside the Western world.

Robert Campbell

From: "Andrew Taranto" <ataranto@verizon.net>

To: "Atlantis" <atlantis@wetheliving.com>

Subject: ATL: The God of the Machine

Date: Tue, 27 Nov 2001 01:20:10 -0500

I just returned from my Thanksgiving vacation (spent in Cincinnati OH with a couple of friends). Most of my time there was spent either eating well or having a LAN party; but on my flights (which involved connections in Pittsburgh one way and Philadelphia the other), I had a good amount of time to read. So I brought my copy of Isabel Patterson's _The God of the Machine_ for a second reading.

What strikes me about this book is that it comes as close to an epic poem as a theoretical work can. Patterson's description of history and politics via a mechanical engineering metaphor is ingenious (though I'll confess to wishing I had a greater knowledge of mechanical engineering). It also adds a nice bit of irony in contrast to Marx's understanding of society as literal mechanism. Coupled with her vibrant and clear style, I regret that she wasn't a professional poet (or was she?).

A while back, I posted some questions on the anarchist/minarchist debate (my first ATL posts, I believe), explaining that I considered myself a minarchist; but that I preferred the term "republican", which I thought to be the political ideal. This spurred a discussion between George Smith and AD Smith on the merits of the term and the history of the "Radical Republicans". In any event, at the time, I had forgotten that it was Patterson's thought that I had in mind.

I'm curious to revisit this thread by asking anyone who's read tGotM what he/she thinks about it, particularly if he/she is an anarchist. Since the aforementioned ATL thread, I've been something of a political agnostic: I don't have a fully-fledged theory of anarchism or "minarchism" (ugh... I still hate that word). My own political theory is still fairly "ad hoc". I think it's better to construe the Constitution strictly; better still to repair its faults (e.g., the commerce clause, eminent domain); but I'm not convinced that a constitutional republic is the best framework for safeguarding individual rights.

I'd like to mention one fairly poetic moment with this book. On the plane from Philadelphia to La Guardia, I read this passage (the footnote from the first page of chapter 15, "The Fatal Amendments"):

"The Bill or Rights is integrally of the original Constitution, being 'the price of ratification.' It is an itemized safeguard of the rights of the individual, and of state sovereignty. The only objection then offered to it was that the enumeration of individual rights might be construed as limiting them to the issues named or as implying that the primary right of the individual is not comprehensive -- the European idea of 'liberties' instead of the American liberty. The point seemed far-fetched; it was certainly far-sighted, for of late that very perversion has been proposed, in a cheap parody, with the phrases 'freedom from want, freedom from fear,' etc. However, it is impossible to make any instrument fool-proof; and the Bill of Rights has served admirably in practical application."

Elsewhere, she talks about the Bill of Rights in conjunction with the treason clause as being the essence of the Constitution. (Note: in her discussion of the treason clause, she took pains to discuss the concept of "corruption of blood". I had asked what this meant a while ago on ATL, forgetful of the fact that she had already explained this to me. I really should have taken notes the first time I read this, I guess.) Anyway, after reading the footnote above, I happened to look out the window of the plane at the suburbs of Philadelphia. I thought of the ~millions~ of people who lived there (whose existence I inferred from the thousands of houses I could see at one time), and the millions more who lived across the country. I thought that most have a standard of living not too different from mine. It struck me that the Bill or Rights is like a genetic code for that standard of living, no matter how many mutations have been piled on to the original ten amendments (like that god-awful 16th), and what an amazing thing it was that so much could depend on a few simple ideas. And then it made me a little sad to think of the danger that both the Bill of Rights and my standard of living are in, from something like a slow-acting terminal illness. This episode seemed like an apt way to cap my Thanksgiving.

Laissez-faire,

Andrew Taranto

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Randall wrote:

Did Ayn Rand write or say anything about zoning laws? I thought she was not opposed to zoning laws on the condition that the laws are objective and rational. Maybe I am mistaken?

end quote

(I will include some quotes that pertain, at the end of this letter, from The Objectivist Center, Ayn Rand, and Michael Miller.)

Zoning Laws.

Consider the following legal issues as a preliminary to our discussion:

Aren’t the following legitimately illegal: “Some” Insider Trading, Privacy, Dirty Tricks, Mental Cruelty, The spreading of false and harmful information, Impersonation, Cruelty to Animals, or Frivolous Lawsuits?

And don’t Zoning Laws, to sustain property values, stop coercive activities?

Objective laws define the legal line between what may be considered morally wrong by different individuals who all have different moralities, and legally wrong behaviors, that infringe upon legitimate rights. Many illegal activities do not involve the ‘strict’ initiation of force. Rather, they are considered coercive. I maintain that zoning prohibits coercive activities.

Michael Miller wrote to the old Owl, about zoning:

The proper purpose of laws is to guarantee your right to do what you want with your property subject only to restrictions you have agreed to in contracts with others. The purpose of zoning laws is to enable others to tell you what to do with your property without your agreement.

End quote

I agree in spirit, but I disagree on finer points that might be considered coercive in nature.

When someone buys or already owns property the land’s dimensions are strictly defined, by surveying. One could say that piece of land is five acres, relatively rectangular in shape, and borders three other properties and the road. However, there is a further dimension to land: The sky above it, the land below it, the surrounding view, and the air you breath.

Property is more than two dimensional. Let me enumerate some cases that illustrate more than two property dimensions.

Water and mineral rights.

Air quality rights.

The sky above. In other words, sunlight and rainfall rights.

My last three enumerated rights are intertwined and tougher to defend:

Who got there first?

The right to a surrounding view.

And the right to a continuation of a property’s fair value.

Water and mineral rights. This is the easiest to defend property right because virtually everyone agrees, mineral rights under the property are justifiable, and require little defense. However, a corollary right is that no one on surrounding properties can legally pump out ground water until the water table under your property is lowered so much that you have no access to well water.

This recently happened in Somerset County, Maryland where a newly built state prison caused dozens of surrounding properties to go dry, and it stopped Wal-Mart from building a distribution center in that County. And there have been many cases where corporations poisoned the ground water.

Another issue, is using up all the water in a river, or damming it, legal, even though the river previously ran through your property?

And there have been cases where individuals or countries drilled sideways under a neighbor’s property to steal oil or minerals.

Air quality rights. No one can deny you breathable air, by burning, building a pig farm, or a manufacturing plant near you, without your consent, if the land is zoned residential or agricultural .

The sky above. No one may plant trees that extend over your property, or block the sun or the rain, with a building, without your permission, if the land is zoned residential, or agricultural.

Who got there first, and the surrounding view? This is a tough one. If I have bought property with the sensible expectation that I may have a certain view, then a property owner near me should not be legally able to block my view, at a later date. This happens frequently in tourist areas, where preexisting buildings have a view of the ocean, or of mountains, or of a waterfall. This right to a surrounding view should also extend to commercial property.

And now my last, more nebulous concept. Does a person have a right to diminish your property’s value, because of something that they do on their property? Let us postulate that I have a Beverly Hills estate and The Clampetts move in next door . . .

I am dumbfounded that no Objectivists have tackled these issues. What a great subject for an essay. Let me throw out the gauntlet! I would like to see a definitive article on Zoning published on Objectivist Living. Who is up to the task?

I am no lawyer or Objectivist scholar, but how does my view square with the following quotes?

Semper cogitans fidele,

Peter Taylor

Ayn Rand, "What is Capitalism" Capitalism: the Unknown Ideal, p. 19

Capitalism is a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.

The recognition of individual rights entails the banishment of physical force from human relationships: basically, rights can be violated only by means of force. In a capitalist society, no man or group may initiate the use of physical force against others. The only function of government, in such a society, is the task of protecting man's rights, i.e., the task of protecting him from physical force; the government acts as the agent of man's right of self-defense, and may use force only in retaliation and only against those who initiate its use; thus the government is the means of placing the retaliatory use of force under objective control.

End quote

From the Objectivist Center:

It is possible to live independently only if one is allowed to do so. One's choices must be voluntary if they are to be freely made. Fundamentally, only the threat of deadly force can undermine one's ability to reason and choose. Assault, murder, theft, fraud: all these are examples of the use of force to deprive someone of freedom, of goods, or even of life. Normally, one employs one's mind to support one's well being. The threat of force makes one accept someone else's dictates, rather than one's own judgment. This was the way the totalitarian systems such as Soviet Russia, Nazi Germany, or Maoist China treated their citizens, and that is why the effect of those systems was a gray, uniform style of life, faltering production, and periodic bouts of mass imprisonment and slaughter. Because force is a fundamental threat to the independent life of production and trade, there is one fundamental principle of social organization that a just society must secure: the principle that no one may initiate the use of physical force against any other . . . .

The individual rights to life, liberty, property, and the pursuit of happiness—mentioned in many American political documents—identify different dimensions of freedom and prohibit the corresponding types of force. "A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context," wrote Ayn Rand. "There is only one fundamental right (all others are its consequences or corollaries): a man's right to his own life." To live, one must be able to take action, by one's own choice, in support of one's life; that is the right to liberty. We are material beings, and so we need the freedom to keep the fruits of our labors and use or dispose of them as we see fit: that is the right to property. And we live as ourselves, for ourselves, so we have a right to pursue our own happiness.

End quote

Michael Miller

III. ZONING

Zoning laws are inherently contradictory to the function of government. The proper purpose of laws is to guarantee your right to do what you want with your property subject only to restrictions you have agreed to in contracts with others. The purpose of zoning laws is to enable others to tell you what to do with your property without your agreement.

If you want to prevent a tall building from blocking your view, you’d better contract with your neighbors in a deed restriction to ban that possibility now, before construction starts. If they want to leave the option open because they think they would rather have the increased value of their property than a clear view, you may not enlist the government to enforce your preferences on them.

End quote

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Why do Objectivists use the term "capitalism" to describe a free-market society based on classical liberal principles? It seems that would overemphasize the role of capital and alienate people who come from leftist backgrounds.

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Why do Objectivists use the term "capitalism" to describe a free-market society based on classical liberal principles? It seems that would overemphasize the role of capital and alienate people who come from leftist backgrounds.

Jackie:

It keeps the riff raff out of the neighborhood and the property values high!

Sorry, just kidding.

That is actually a really good question. I will wait for some others to answer before I put my head in the noose.

Adam

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Why do Objectivists use the term "capitalism" to describe a free-market society based on classical liberal principles? It seems that would overemphasize the role of capital and alienate people who come from leftist backgrounds.

The full phrase is laissez-faire capitalism, and Objectivists don't countenance using euphemisms or otherwise censoring themselves on the assumption that what they support is shameful or in need of sugar-coating.

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maybe this has been already answered or maybe there is no specific writings that Rand wrote to reference but here goes nothing....

It seems from the Rand interviews I have watched, she seems to appreciate and respect the founders and the founding of this country. In one interview she said she was passionately in love with the original purpose and mission of this country.

Second, Objectivist law has a very stripped down need for government, which is limited to courts and police (and military, which is simply a large scale police force)

If Ayn was for the founders and their constitution, what role does a President have in an Objectivist society? The constitution calls for a president and a legislative branch. What would those individuals do? I, at best, could only see the need for the legislative to meet maybe once a decade or in emergency situations such as deciding whether we should invade a country after we have repelled a attack in order to fully demolish the threat, but even that seems like it could be decided by military leaders. I have NO clue as to what a president is needed for. There would be no need to lead anything. Then without any regulations, there is hardly a need for the legislative. The simplified law code could be written in a few days and stamped into a stone like the ten commandments and there it would stand (until the next 10 year cycle when there would be a quick review in order to include any new technologies which may, but probably won't, change the landscape enough to warrant such law additions)

So I guess my question, put simply, is did explicitly Rand approve/disapprove the constitution and what were her explicit reasons?

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You have to keep the contextual difference between Ayn Rand's emotional support for the American republic as a superlative achievement and a detailed analysis of constitutional law. Basically, Ayn Rand did not delve into the details of constitutional law. You can enter "constitution" in the Ayn Rand Lexicon online and find a few things. Remember that at the end of Atlas Shrugged, Judge Narragansett was fixing the contradictions in the Constitution without being specific. He did insert the limitation that Congress shall make no law restricting the rights of production and trade.

in her essay "The Nature of Government" Ayn Rand did point out that while government is a necessary service, it is not necessarily a free service. She went no further, but I understand that to say that the Seventh Amendment would have to be removed. If anything speaks to our having left the 18th century behind, it is the unimportance of twenty dollars.

I point out that the Fourteenth Amendment is complex, and includes Section 4 which makes it illegal to question the public debt.

Ayn Rand approved of the Constitution as an attempt to define the workings of a limited government. She did not approve of every detail within the present document.

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The Objectivist Living view of government and law is that if Donald Trump is elected, the libel laws should be changed to allow President Trump to sue the media if they say false things about him:

http://www.aol.com/article/2016/02/27/donald-trump-vows-to-rewrite-libel-laws-to-make-it-easier-to-sue/21319610/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl23%7Csec1_lnk3%26pLid%3D1779313151

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REB:

It appears that you will not vote if it is Trump vs. Clinton.

True?  Or would you vote for another candidate in another party?

A...

 

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Roger,

It won't happen.

That's a legal quagmire. Trump might tighten up a detail or two, but the burden of proof of damage from libel is a bitch for a celebrity. Whatever he tries (if he tries anything, which I doubt), he's sure to make a lot of lawyers happy.

:) 

Trump is winning an election by playing the press again. And they are falling for it again. I betcha they back off a little now.

:)

(This is called the bombastic offer technique...)

Michael

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