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Posted

I propose a Constitutional Convention to enact three fixes to the Constitution. No other business will be conducted.The last amendment to the constitution was ratified May 5, 1992:

One. Paraphrasing Ghs, overturn by amendment, the 1936 Supreme Court decision "United States v. Butler" where Alexander Hamilton's broad interpretation of the "general welfare" clause was explicitly adopted, thereby gutting the enumerated powers doctrine advocated by Jefferson and other strict constructionists .

Two. Beef up the language in The Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Beef up the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Three. We need an amendment to restore the balance of power. Jamie Radke, Senatorial candidate from Virginia said:

The Repeal Amendment is a proposed amendment to the US Constitution designed to restore the balance of power between the federal and state governments that our Founders originally envisioned. The amendment states that any law, rule, regulation, or tax passed by Congress can be repealed upon a vote of two-thirds of state legislatures. This does not give absolute power to the states—but with repeal power, the states could check the current absolute power of the federal government and force Congress to take a second look at unwise legislation.

end quote

What else is needed?

Peter Taylor

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Posted

An early and succinct defense of "Defense Services on the Free Market" can be found in Murray Rothbard's Power and Market (1970). This excellent summary can be read online at:

http://library.mises...e%20Economy.pdf

See Chapter 1, pp. 1-10.

The anarchist controversy aside, this is one of the best books that Rothbard ever wrote. (Murray thought of it as the third volume, in effect, of his masterpiece, Man, Economy, and State.) Even minarchists will appreciate Rothbard's devasting rebuttals of various statist arguments throughout the book.

When Murray was at this best, he was absolutely superb. This is one of the greatest books on freedom written in the modern era.

Ghs

I'm not as impressed by Rothbard's Chapter 1 as George is. I believe Rothbard deals with the use of corecion by private defense agencies more or less by assuming it away.

Rothbard deals with a particular case and in general (pages 6-8). On page 8 he writes: "But the point is that in a stateless society there would be no regular, legalized channel for crime and aggression, no government apparatus the control of which provides a secure monopoly for invasion of person and property." In other words, he doesn't really deal with the problem, but jumps to attacking opponents.

In 2004 I questioned members on Atlantis II about how private defense agencies would work. There were two threads. One starts here. The seconds starts here; its pace picks up starting about here. I didn't find their answers satisfactory.

Posted

An early and succinct defense of "Defense Services on the Free Market" can be found in Murray Rothbard's Power and Market (1970). This excellent summary can be read online at:

http://library.mises...e%20Economy.pdf

See Chapter 1, pp. 1-10.

The anarchist controversy aside, this is one of the best books that Rothbard ever wrote. (Murray thought of it as the third volume, in effect, of his masterpiece, Man, Economy, and State.) Even minarchists will appreciate Rothbard's devasting rebuttals of various statist arguments throughout the book.

When Murray was at this best, he was absolutely superb. This is one of the greatest books on freedom written in the modern era.

Ghs

I'm not as impressed by Rothbard's Chapter 1 as George is. I believe Rothbard deals with the use of corecion by private defense agencies more or less by assuming it away.

Rothbard deals with a particular case and in general (pages 6-8). On page 8 he writes: "But the point is that in a stateless society there would be no regular, legalized channel for crime and aggression, no government apparatus the control of which provides a secure monopoly for invasion of person and property." In other words, he doesn't really deal with the problem, but jumps to attacking opponents.

In 2004 I questioned members on Atlantis II about how private defense agencies would work. There were two threads. One starts here. The seconds starts here; its pace picks up starting about here. I didn't find their answers satisfactory.

First, I specifically described Rothbard's treatment in Power and Market as " a succinct defense" and a "summary." He presents fuller treatments elsewhere, e.g., in For a New Liberty.

Second, Rothbard does far more than attack opponents. He focuses on rebutting the objections to free-market defense agencies,which is not the same thing, and he outlines some fundamentals of free-market justice.

Third, in "Government Financing in a Free Society," Rand argues that the task of a political philosopher is "only to establish the nature of a principle and to demonstrate that it is practicable." She rejects the notion that philosophers should attempt to provide a blueprint for a future society. Rothbard says much the same thing in the chapter I cited:

Let us, then, examine in a little more detail what a free market defense system might look like. It is, we must realize, impossible to blueprint the exact institutional conditions of any market in advance, just as it would have been impossible fifty years ago to predict the exact nature of the television industry today. However, we can postulate some of the workings of a freely competitive, marketable system of police and judicial services to be supplied on call.

Similarly, Rand, in her discussion of how a government could be financed voluntarily, wrote:

This particular "plan" is mentioned here only as an illustration of a possible method of approach to the problem -- not as a definitive answer nor as a program to advocate at present.

The caveats by Rand and Rothbard are substantially identical. Thus, if you are going to reject Rothbard's suggestions because they fail to provide a detailed blueprint, then you should reject Rand's ideas about voluntary financing as well.

Lastly, Murray published Power and Market in 1970, so it has been around for over four decades. Yet many O'ists -- and I don't include you in this category -- are completely ignorant of this and similar treatments. Rather, they argue as if nothing more needs to be said other than what Rand said in a few paragraphs in a brief 1963 essay, "The Nature of Government."

Ghs

Posted

George wrote:

All we need to do, in essence, is to examine every "right" claimed by police (or a government generally) and then ask whether any individual could legitimately claim such a right in a state of nature. If not, then no such right exists.

end quote

The Ninth amendment “declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained by the people.”

The Tenth Amendment “reserves to the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the states from exercising."

I agree with George that these two amendments need to be enforced, though, in a sense they appear to be THE VERY Rational Anarchism that George posits. Can anyone list some other essentially needed additions to The Bill of Rights?

Peter Taylor

It is interesting to note that Randy Barnett -- you know, one of those crazy, irrational anarchists -- has written more on the Ninth Amendment (including an entire book) than any other scholar in modern times, and probably any other scholar in history. For a small sample, see:

Introduction: Implementing the Ninth Amendment

http://www.randybarnett.com/rightsbypeople.html

Part II, "Why the Rights Retained by the People are Unenumerable," might be of special interest to you.

Ghs

Posted

I propose a Constitutional Convention to enact three fixes to the Constitution. No other business will be conducted.The last amendment to the constitution was ratified May 5, 1992: [snip]

Any such Convention, were it to be held today or in the foreseeable future, would result in a Constitution far worse than the one we currently have.

You mentioned several issues, but the problem with SCOTUS run far deeper than you might imagine. As Randy Barnett says in the article on the Ninth Amendment that I linked in my last post:

When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive and the people.

Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse. According to what the Court calls the "presumption of constitutionality," legislation will be upheld if any "rational basis" for its passage can be imagined, unless it violates a "fundamental" right—and liberty has not been deemed by the Court to be a fundamental right. As the Court stated in United States v. Carolene Products Co:

"There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced with the Fourteenth . . ,. " In other words, the enumerated rights may narrow the presumption of constitutionality, but one of the unenumerated rights retained by the people will have no such power-limiting effect.

Randy's approach, which relies heavily on the interpretation of the Constitution defended by Lysander Spooner (you know, another one of those crazy, irrational anarchists), is to introduce the "presumption of liberty" into constitutional interpretations.

Randy and I discussed this issue frequently and extensively during the 16 years that we did IHS and Cato conferences together. I used the phrase "the presumption of liberty" many times in my lectures on the history of classical liberalism, which is one reason why Randy gave me a very generous acknowledgment in The Structure of Liberty: Justice and the Rule of Law (Oxford, 1998). Immodesty has never been a problem for me, so I will quote his comments here:

It was not too long after that when I met George Smith. For a time, we were something of friendly intellectual rivals. The first indication that we would be more than this came on the heels of a debate we had on the subject of procedural justice. I had commented somewhat critically on a paper by George at a conference held at Princeton. [This was "Justice Entrepreneurship in a Free Market."]Sometime later, when I was already in practice as a criminal prosecutor in Chicago, the papers were published, along with George's reply. I remember quickly skimming through his response and feeling a bit uneasy. For he had refined his initial position in such a way as to make my argument seem less than entirely persuasive. A bit disconcerted, I tossed the volume aside, being too enthralled by my involvement with the criminal justice system to focus on such matters. When I picked it up again some years later, my initial instincts were confirmed. Without question, he had bested me in that debate and taught me an important lesson about the centrality of legality, as distinct from justice, in the structure of liberty. It was not to be my last lesson from George.

My instruction continued when, for many years, George and I both taught in the summer seminars organized by the Institute for Humane Studies. Every summer, I would audit his lectures which were fascinating from the beginning and which became increasingly so over time. Though trained in philosopy at Arizona State [sic; I attended UA], George had abandoned his formal schooling to pursue a decade-long course of independent study, a large measure of which was devoted to the long-forgotten natural rights theorists. It was his synthesis of their arguments that caused my thinking to take the direction reflected in this book, most importantly in Chapter 1, but also in the argument on the inalienability of certain rights which is presented in Chapter 4. In more ways that I can know or acknowledge, this book has been influenced by George's distillation of the classical approach to natural rights as well as to his own theories of justice. I am and will forever be deeply indebted to him.

I haven't been in touch with Randy for some years now, but I saw him interviewed last night, on Fox News, about the Supreme Court case involving Obama Care. (Randy has argued before the Supreme Court on at least one occasion.) He has aged, as we all have, but he looks a hell of a lot better than I do. I think being one of the most respected legal scholars in America, and a frequently interviewed expert on legal matters, agrees with him. 8-)

Ghs

Posted

Peter,

Here is my discussion of Lysander Spooner's theory of constitutional interpretation -- the approach that influenced Randy. This is excerpted from my Introduction to The Lysander Spooner Reader (Fox and Wilkes, 1992)..

http://www.voluntary...onerreader.html

Some of the formatting may be screwed up, but I'm too lazy to fix it.

Spooner's role in abolitionism can be understood only by placing him in the broader context of the controversies that divided that volatile and fascinating movement.[10]

The dominant figure in abolitionism was William Lloyd Garrison, editor of The Liberator. Garrison firmly believed that the Constitution sanctions slavery, even though the words "slave" and "slavery" never appear in the document. Garrison's position was strengthened in 1840, when James Madison's record of the Constitutional Convention was published for the first time.[11] Much that transpired during the Constitutional Convention remained hidden from Americans for fifty years, thereby permitting delegates to escape accountability through death. Madison's detailed notes--suitably altered so as to understate his youthful nationalism--left no doubt about the place of slavery in the Constitution. It was sanctioned and protected as a means to bring the deep South into the union. This was especially apparent in three clauses: the provision that "all other persons� were to be counted as three-fifths when computing representation in the House (Art. I, sec. 2); the provision that Congress could not outlaw the slave trade until 1808 (Art. I, sec. 9); and the provision that required states to return runaway slaves to their masters (Art. IV, sec. 2). Garrison's position was clearly and colorfully stated in 1854, when abolitionists convened in Framingham, Massachusetts to protest the return of an escaped slave, Anthony Burns. During his speech, Garrison held up a copy of the Constitution and condemned it as "a covenant with death and an agreement from hell." Then Garrison burned a copy of the Constitution while declaring, "So perish all compromises with tyranny!" Most of the audience responded with amens.[12]

Garrison's view of the Constitution led him to oppose any political activity by abolitionists. His colleague Wendell Phillips defended this position in Can Abolitionists Vote or Take Office Under the United States Constitution? (1845). Phillips notes that all officials, state and federal, are required to swear an oath "to support the Constitution of the United States"--and he maintains that no abolitionist can do so in good conscience, because the Constitution is a pro-slavery document. Nor should abolitionists vote, because voting delegates authority to an agent, and what "one does by his agent he does himself." Phillips continues:

Of course no honest man will authorize and request another to do an act which he thinks it wrong to do himself. Every voter, therefore, is bound to see, before voting, whether he could himself honestly swear to support the constitution.[13]

In The Unconstitutionality of Slavery, Spooner sought to refute the Garrisonian critique of the Constitution and thereby open the door for political activity by abolitionists. Spooner was neither the first nor the last to try this, but his attempt was the most thorough and legally grounded. To establish the unconstitutionality of slavery, Spooner believed, was a necessary step in abolishing slavery. Even if the entire North became abolitionist, "they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional." Southern lawyers were noted for their strict and literal interpretation of the Constitution, so Spooner hoped to change their minds by meeting them on their own ground. He based his case on the rules of legal interpretation expounded by Sir William Blackstone and other authorities of Common Law.

According to Spooner, law, in its most basic sense, refers to natural law--"that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men." All men are endowed with equal rights to life, liberty, and property. This is "the paramount law"; indeed, strictly speaking, there can be "no law but natural law," because no human enactments can overturn the provisions of natural justice. Legitimate governments must rest on consent; a social contract, and even that contract �cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government--which is but an association of individuals--than to a single individual." The only "legitimate and true object of government,� is to protect natural rights. Even a majority, however large, cannot agree to a contract (a constitution) that violates "the natural rights of any person or persons whatsoever." Such a contract "is unlawful and void� and has "no moral sanction.�[14]

This argument from natural law renders slavery immoral and unjust, whatever the Constitution might say. But Spooner does not base his constitutional argument on this premise. In interpreting the Constitution, he insists only that "the ordinary legal rules of interpretation.� be observed. Natural right, in Spooner's argument, functions as a presumption, a beacon to guide legal interpretations. The most important rule is that all language in the Constitution "must be construed 'strictly' in favor of natural right," unless there is clear and convincing evidence to the contrary. Before we can interpret constitutional provision as contrary to natural right (i.e., as upholding slavery), the terms of that provision must be "express, explicit, distinct, unequivocal, and one to which no other meaning can be given. . . . [15]

While examining the slavery clauses of the Constitution, Spooner falls back on his basic rule of interpretation. Any apparent violation of natural right must be stated explicitly and not permit another, more libertarian interpretation. For example, the fugitive slave clause refers to persons �held to service or labor.� According to Spooner, this provision, if interpreted literally, refers to indentured servants, not to slaves. And so it goes with other slavery provisions of the Constitution. Spooner was unmoved by the supposed intentions of the Constitution's framers. The only relevant legal point is what the Constitution in fact authorizes in express language, not what its framers intended it to authorize. The Constitution never mentions slaves or slavery, so by strict rules of interpretation--indeed, by the same rules that most Southerners followed--the constitution cannot be viewed as pro-slavery.

Posted

Thank you George. I will read the article from Randy E. Barnett

George Mason University Press (1993). I copied it to my files. My youngest daughter was accepted there but at the last second, declined. Literally at the last second as I stood in line with her to register for specific classes, some boisterous lacrosse players walked by and commented about her good looks and she started crying and said she did not want to go there. “But, but I stammered, Walter Williams is a professor here,” however that had no affect on her decision.

Peter Taylor

Posted

And “a market in the objectively justifiable use of force” is still a market in force, because when agencies differ with each other on what “objectively justifiable” means, one agency will eventually have to impose its view on those who disagree. The notion that the enforcement agencies will never disagree on that issue is, as you say, “absurd on its face.”

As usual, you speak in generalties without drawing crucial distinctions. The relevant distinction here is that between fundamental laws and the application of those laws to particular cases.

If you wish to descend from the clouds of theory and talk about what real governments are actually like, then I would be more than happy to discuss that issue with you. But in the current debate you cannot eat your cake and have it, too. You may not assume that your ideal government will be rational but that justice agencies will be irrational. Or if you want to assume this, then I will compare an irrational and tyrannical government against private agencies that are rational and just.

Ghs

http://www.youtube.com/watch?v=t3GnWTy8Ebg

Posted

George wrote: It is interesting to note that Randy Barnett -- you know, one of those crazy, irrational anarchists -- has written more on the Ninth Amendment . . .

end quote

George, how do I put this politely? There is a screw loose amongst you guys. Using empirical evidence to support their Constitutional writings, The Founders had their colonies, Christianity, a homogenous society, the Constitutional monarchies or at least Monarchies of that era under the sway of The Magna Carta, as examples. You have nothing to base the lack of something upon.

From the Stanford Encyclopedia of Philosophy:

The dispute between rationalism and empiricism concerns the extent to which we are dependent upon sense experience in our effort to gain knowledge. Rationalists claim that there are significant ways in which our concepts and knowledge are gained independently of sense experience. Empiricists claim that sense experience is the ultimate source of all our concepts and knowledge.

end quote

Anarchism is an example of rationalism. It proceeds deductively from a limited set of premises which are presumed to include all the relevant considerations, without any examples of anarchism in action. Other than unplanned, accidental anarchism there is no anarchism, so a proponent of Planned Rational Anarchism is using unplanned anarchism, examples of governments, historical analysis and reason, to promote Planned Rational Anarchism. If one were working for NASA on rocket trajectories, experimental data would be required, so Anarchism is not rocket science.

Our Founding Fathers created a Constitution after doing all that the Rational Anarchist does but as Empiricists they also looked at the American Colonies and the Constitutional Monarchies of other countries as examples to emulate or avoid. To be fair to the Rational Anarchist we must insist that they produce an example of *no government* that worked. A hypothesis needs an experiment.

George quotes Rothbard who wrote:

Let us, then, examine in a little more detail what a free market defense system might look like. It is, we must realize, impossible to blueprint the exact institutional conditions of any market in advance, just as it would have been impossible fifty years ago to predict the exact nature of the television industry today. However, we can postulate some of the workings of a freely competitive, marketable system of police and judicial services to be supplied on call.

end quote

And Ayn Rand, in seeming agreement with Murray Rothbard, is quoted saying about voluntary taxation for government:

This particular "plan" is mentioned here only as an illustration of a possible method of approach to the problem -- not as a definitive answer nor as a program to advocate at present.

end quote

Rand is using Constitutional Government as her empirical model. Rothbard is using a hypothetical, post apocalypse society that lacks a government, as the basis for his postulation of specific police or judicial services. That may seem Randian to you George but it only reminds me of Rand’s paper thin, scifi thriller “Anthem.”

One last point. If we got rid of those offending SCOTUS verdicts, and the ninth and tenth amendments were strictly enforced AND if the Constitution was strictly followed would this come close, closer, or closest to your Anarchic ideal?

Peter Taylor

Posted

And “a market in the objectively justifiable use of force” is still a market in force, because when agencies differ with each other on what “objectively justifiable” means, one agency will eventually have to impose its view on those who disagree. The notion that the enforcement agencies will never disagree on that issue is, as you say, “absurd on its face.”

As usual, you speak in generalties without drawing crucial distinctions. The relevant distinction here is that between fundamental laws and the application of those laws to particular cases.

So now the debate has come around to the issue of which one of us is proselytizing from his perch in the clouds. I certainly agree with you that concretizing how minarchy vs anarchy translates to actual practice in the real world constitutes the crucial step in resolving the debate. That’s why I gave numerous instances of the kinds of criminal and civil disputes that would arise under a system of anarchy in post #4.

Why do you think it is inevitable that two justice agencies will disagree on fundamental issues of law? And if two agencies happen to disagree on the application of laws (e.g., court verdicts), then why wouldn't they agree to submit their disagreement to an impartial arbiter? Wouldn't this serve their rational self-interest much better than fighting? Would you do business with an agency that is fighting all the time? I certainly would not.

If you reply that justice agencies will not necessarily be rational, I will point out that you began with the working assumption of a fully rational, ideal Randian government. I am therefore justified, for the sake of argument, in positing fully rational, ideal justice agencies. And such agencies would negotiate rather than fight, just as rational governments will negotiate rather than fight. Or do you think the U.S. should go to war with Great Britain or Canada whenever a disagreement or conflict arises?

Actually, in the kind of ideal, "fully rational" situation you project here, there would be no need for any government or defense agencies at all, since everyone would be so beautifully rational that all disputes could be settled nonviolently, by simple arbitration. There was no 'government' in Galt's Gulch. The reason that limited government is necessary is precisely because, no matter how rational the world becomes, there will always be people who want to use force to get their way, or to obtain something for nothing. In your anarchic society, undoubtedly some of those people, seeing the door left wide open for their whims to prevail, will decide to start their own private defense agencies. And there will be nothing to hold them in check but another defense agency, guns at the ready.

The majority of people in a rational society will simply want to live their lives free of force, which is why they will choose a single government agency which can much more easily be held in check by democratic vote. In your system, no such check exists for those citizens outside the jurisdiction of a given agency.

The potential for disagreements, even among rational agencies who agree on fundamentals, remains massive. In post #4, I reviewed just a few of the kind of disagreements that could arise. This just scratches the surface. Arbiters would be overwhelmed by such a huge complexity of disagreements, that pretty soon the citizens would be calling for the establishment of a single governmental agency with a single set of rules to minimize the chaos. That is after people had to live with such turmoil on a daily basis that the normal conduct of their business and personal lives became impossible.

Is that what your ideal government would do with the "competing governments" in other countries -- go to war rather than negotiate a reasonable settlement, in the event of different decisions? Would you consider this rational behavior?

Ghs

There is a crucial difference between how real governments interact today as opposed to how defense agencies would interact. Under anarchy, the ‘private governments’ have contested jurisdiction over the same population and their conflicting laws directly impact that population every day in thousands of ways. In the international context, the conflicts (territorial disputes, import/export rules, treaties, laws of the sea, customs, travel restrictions, corporate & business law conflicts, state recognition issues, et. al.) do not have the same degree of impact on everyone’s daily life. For the most part, the governments have time to think over their respective positions and map out a strategy to deal with the conflicts. Part of the reason for that is the geographical distance which separates them. If you eliminate that one factor, not only the number of disputes but their intensity level—i.e., their impact on daily life-- increases not only exponentially but with dramatic emotional and personal intensity.

You can wait months or years to decide questions of how a treaty should be interpreted. But if one “government” in a single geographic area wants to arrest a man for murder or rape and the other says he must be allowed to remain free, chaos can break out within days, as the Trayvon Martin case demonstrates. If one government says business A cannot take such and such an action because it violates the contractual rights of another business B, but next door there is another “competing” government that says it can proceed, company A’s survival depends on obtaining immediate clarity about the objective terms of the law. Multiply those two examples by a factor of several thousand similar unresolved criminal and civil cases arising every day and you have total, unmitigated chaos.

The time pressures placed on a geographic population whose citizens want to get on with their lives will lead to one agency pressuring another—and, eventually, the guns will come out, even in the most rational of ideal worlds

Unfortunately, you haven't even attempted to show how one agency, which calls itself the government, can legitimately impose, by coercive means, its own notion of justice on other agencies.

So now we find ourselves back to square one again. This type of context-dropping remark is what makes these debates seem ultimately pointless. Two words: Objective law. Everything I have said in my prior posts explains why objective law requires a single agency entrusted with that purpose, strictly delimited to the protection of rights and subject to democratic control by majority vote.

Posted

So now we find ourselves back to square one again. This type of context-dropping remark is what makes these debates seem ultimately pointless. Two words: Objective law. Everything I have said in my prior posts explains why objective law requires a single agency entrusted with that purpose, strictly delimited to the protection of rights and subject to democratic control by majority vote.

The problem isn't we can start out fresh but can't stay that way. Young countries grow old and . . .

--Brant

change by degenerate evolution

Posted

Anarchism is an example of rationalism. It proceeds deductively from a limited set of premises which are presumed to include all the relevant considerations, without any examples of anarchism in action.

This is crap. Rothbardian anarchism is merely a variant of traditional theories of limited govenment. It is pro-rule of law, pro-constitutional limits on the use of force, etc.

As for legal pluralism, this was the norm in Europe for many centuries. Entire historical books have been written about nonmonopolistic legal systems, such as the book by Harold Berman, Law and Revolution, that I mentioned previously. There have also existed anarchistic societies, such as those discussed by Jefferson, Spencer, Kropotkin, and many modern anthropologists. Just because you are too lazy to read and don't know anything about historical precedents doesn't mean that such precedents don't exist.

Our Founding Fathers created a Constitution after doing all that the Rational Anarchist does but as Empiricists they also looked at the American Colonies and the Constitutional Monarchies of other countries as examples to emulate or avoid. To be fair to the Rational Anarchist we must insist that they produce an example of *no government* that worked. A hypothesis needs an experiment.

There were no historical examples of constitutional republics on the large scale implemented by the U.S. Constitution. Conventional wisdom spoke against it. Indeed, for 150 years a central tenet of Radical Whiggism was that freedom can be preserved only within small geographical areas. Madison had to argue against this premise in the Federalist Papers, especially in #10. Moreover, Hamilton (also in the Federalist Papers) spoke of a new theory of political science -- one that had been developed very recently -- that repudiated many of the older assumptions about government that had previously been accepted by advocates of limited government.

Neither Madison nor Hamilton were able to give historical examples of the radical innovations they were proposing. They relied instead on two things: first, mistakes that earlier republics had (supposedly) made; second, a political theory based on principles knowable to reason.

Rothbardians have done exactly the same thing. Indeed, Rothbard's discussions of anarchism are heavily laced with historical disussions of how states have arisen and maintained their power, and why freedom has failed in the past. Like the Founders, he then combined his historical analyses with philosophical reasoning.

You don't know what you are talking about, so stop wasting my time -- and read some of Rothbard's books, such as For a New Liberty.

Ghs

Posted

For example, as Rothbard and many others have suggested, rational self-interest would generate cooperation among different agencies. The result would probably be ...

As I have said repeatedly, the actual historical record provides all the evidence necessary. As noted at the very top, Rothbard, the Tannehills, et al, commit rationalist errors by spinning their imaginations instead of examining empirical experience.

I just posted to my own blog, an outline of some problems I found in Rothbard's treatment of money and banking.

Rothbard substituted political rants for historical facts.

http://necessaryfacts.blogspot.com/2012/04/murray-rothbard-fraud-or-faker.html

Posted

Unfortunately, you haven't even attempted to show how one agency, which calls itself the government, can legitimately impose, by coercive means, its own notion of justice on other agencies.

So now we find ourselves back to square one again. This type of context-dropping remark is what makes these debates seem ultimately pointless. Two words: Objective law. Everything I have said in my prior posts explains why objective law requires a single agency entrusted with that purpose, strictly delimited to the protection of rights and subject to democratic control by majority vote.

I have two words for you: Educate yourself.

Ghs

Posted

Our Founding Fathers created a Constitution after doing all that the Rational Anarchist does but as Empiricists they also looked at the American Colonies and the Constitutional Monarchies of other countries as examples to emulate or avoid. To be fair to the Rational Anarchist we must insist that they produce an example of *no government* that worked. A hypothesis needs an experiment.

The evidence is all around you. Corporations and private individuals alike shop for laws. We choose the ones we want.

And private armies commit atrocities.

Like the rationalists you denounce, you have a Platonic Ideal against which you measure the evidence of your senses, condemning reality for not meeting your expectations. We have hundreds of constitutionally limited goverments. We have hundreds of private defense agencies. We have seven billiion people. Evidence is not hard to find: rather, it is hard to avoid.

Posted

If I am confronted with two justice agencies that enforce the same system of law, but one agency does this much more efficiently than the other, then why may I not use my own reason to decide which agency I wish to employ? Where do you get the right to tell me: "You cannot choose that agency, even if it is more efficient. Why? Because I call the other agency the "government." I like the other agency better, so you must choose it."

This is hopelessly detached from the real world, George, both with respect to the nature of the institutional structure required for government and the notion that two or more agencies would have identical systems of laws. It is, as I said before, using your words, "absurd on its face."

One must first understand an argument before one can take it seriously. You do not seem well-informed about the issues involved here. Have you ever read the essential presentations of the anarchist side, such as Rothbard's For a New Liberty or The Ethics of Liberty or Power and Market? Have you read any of Randy Barnett's extensive publications on the subject of legal pluralism (some of which were published in the Harvard Law Review), including The Structure of Liberty?

I read some of Rothbard's various writings on this issue many years ago and found his arguments sorely lacking with respect to the world we live in. More recently, I read Chris Sciabarra's extensive examination of Rothbard's utopian theories in Total Freedom: Toward a Dialectical Libertarianism. I thought Chris did a fantastic job of analyzing the pro's and con's of Rothbard's utopian fantasies. If you haven't read it, you should. He presents a very thorough, detailed, objective analysis.

I have read nothing that suggests to me that Rand was wrong with respect to her position that ruling force out of human relationships is a precondition of free market capitalism, and that minarchy is the only viable and reaiistic means to that end.

How about Law and Revolution: The Formation of the Western Legal Tradition (Harvard, 1983), by the distinguished legal historian Harold Berman? -- a book that has often been cited by libertarian anarchists, even though Berman is nothing of the sort. This book is a fascinating account of the different European legal systems -- canon law, manorial law, mercantile law, urban law, etc -- that functioned simultaneously in overlapping jurisdictions for many centuries throughout Europe. Believe it or not, Dennis, these legal systems usually harmonized quite well. And the wars that did erupt did not match the scale of the highly destructive wars of the era of the modern nation-state. Not even close.

Ghs

Concurrent jurisdiction exists today, of course, not only between state and federal courts but between different levels of state courts and other governmental agencies. But the reason these courts can function in harmony is because there is a single governmental authority overseeing them.

In feudal times,.from what I know, when church and state divisions created a situation where there was no single governmental authority, things did not go nearly as smoothly as you suggest. Concurrent jurisdiction worked fairly well in France during the reign of the House of Capet, for example, just as it does in the United States today. Ecclesiastical courts, courts of feudal lords, mercantile courts, et al—operated under customary laws and were largely subordinate to the crown.

When there were significant disputes between royal jurisdiction and papal supremacy, however, there was also significant civil unrest. After the Norman Conquest of 1066, William the Conqueror successfully centralized ecclesiastical authority for the king and secured the authority to decree canon law. But a century later, under the reign of Stephen (1135-1154), the papal authority made significant gains in prestige and power, leading to what was called “the anarchy of Stephen,” a period characterized by significant civil unrest.

In the minarchy-anarchy debates, the primary discussion revolves around the question of internal chaos created by civil unrest, not wars between nation-states.

Posted

Ghs wrote:

James Madison's record of the Constitutional Convention was published for the first time.[11] Much that transpired during the Constitutional Convention remained hidden from Americans for fifty years, thereby permitting delegates to escape accountability through death. Madison's detailed notes--suitably altered so as to understate his youthful nationalism--left no doubt about the place of slavery in the Constitution. It was sanctioned and protected as a means to bring the deep South into the union.

end quote

This illustrates that any great human undertaking can be flawed - by pragmatism, lack of forsight, prejudice, and by any of our human failings. And any great enterprise can be rescued by reason. The issue of slavery, outlawed in 1808, WAS finally corrected, NOT by a competing defense agency, The Confederacy, but by the legitimate Constitutional Government of the United States of America.

Can you predict that your Rational Anachism would not resemble the Confederacy, The Mafia, Boss Tweed, The Bowery Boys or The Pug Ugly New York gangs? No one can predict what will happen because you have no signatories to a plan, or a consensus for a plan among a large group of people. You lack a plan.

So if someone is convinced by you and sincerely asks, “I bought your book Mr. Smith. Where do I sign up for Rational Anarchism.” What do you say, “Moron, you lack the fundemental basis for being an Anarchist, which is knowing that the plan is to have no plan. Go away kid, you bother me?”

You complain about the same doubts concerning Anarchism coming from Objectivists over and over again. But I must echo Dennis Hardin. You never answer those doubts with a plan and then you call the Objectivist a Subjectivist for wanting proof! Help correct the flaws in the Constitution, IN YOUR LIFETIME. May fame and fortune be yours.

Tomorrow will be my last day here at Objectivist Living, hopefully, for just a little while. As the joke goes, I am blind in one eye and can’t see out of the other. Unfortunately I am truly blind in one eye and it is not correctible. And I can’t see out of the other, which is why I slip up occasionally and print my notes in a large type font. What a dilemma.

Peter Taylor

Posted

If I am confronted with two justice agencies that enforce the same system of law, but one agency does this much more efficiently than the other, then why may I not use my own reason to decide which agency I wish to employ? Where do you get the right to tell me: "You cannot choose that agency, even if it is more efficient. Why? Because I call the other agency the "government." I like the other agency better, so you must choose it."

This is hopelessly detached from the real world, George, both with respect to the nature of the institutional structure required for government and the notion that two or more agencies would have identical systems of laws. It is, as I said before, using your words, "absurd on its face."

You have a short memory, Dennis. You began this discussion by positing an ideal Randian government, based on NB's premise of unanimous consent. If any premise is "hopelessly detached from the real world," you found it.

Oh, and how about a government that doesn't tax but relies on voluntary financing instead? Talk about being hopelessly detached from the real world!

As I have said repeatedly, I have no problem discussing ideal models for the purpose of philosophical discussion. This is done all the time not only in philosophy but also in economics and sociology. (Max Weber called these models "ideal types," and his conception of theoretical reasoning in the social sciences influenced Ludwig von Mises, who discusses the methodology of ideal types in Human Action.)

But you may not propose an ideal type of limited government for your purpose, and then deny to your adversaries the same privilege. I just read a comment by you (I don't recall which post it is in) in which you say that bad guys (in effect) will surely form their own agencies. In the real world, yes, this would probably happen from time to time.

But what, in the real world, would those bad guys do in regard to your government? Well, many of them would infiltrate your government and take control of it, just as bad guys have done throughout history.

And if we are going to deal not with ideal types but with the real world of bad guys, I would much rather have them running an outlaw agency in a free market, where other agencies can restrain their power, than have them control a monopolistic government, where no one stands a chance against them.

So how would you keep the bad guys out of your limited government? With a piece of paper called a "constitution"? Yeah, good luck with that.

Ghs

Posted

Can you predict that your Rational Anachism would not resemble the Confederacy, The Mafia, Boss Tweed, The Bowery Boys or The Pug Ugly New York gangs? No one can predict what will happen because you have no signatories to a plan, or a consensus for a plan among a large group of people. You lack a plan.

Doesn't this imply a central planning perspective? How do libertarians and Objectivists respond when asked for a blueprint explaining how health care or education would work? In short, they can make broad, general predictions based on the spontaneous order of the market, But a "plan" is something mapped out in advance by someone independant of the system in question, which misunderstands the position of the anarchist.

Tim

Posted

Ghs wrote:

James Madison's record of the Constitutional Convention was published for the first time.[11] Much that transpired during the Constitutional Convention remained hidden from Americans for fifty years, thereby permitting delegates to escape accountability through death. Madison's detailed notes--suitably altered so as to understate his youthful nationalism--left no doubt about the place of slavery in the Constitution. It was sanctioned and protected as a means to bring the deep South into the union.

end quote

This illustrates that any great human undertaking can be flawed - by pragmatism, lack of forsight, prejudice, and by any of our human failings. And any great enterprise can be rescued by reason. The issue of slavery, outlawed in 1808, WAS finally corrected, NOT by a competing defense agency, The Confederacy, but by the legitimate Constitutional Government of the United States of America.

Can you predict that your Rational Anachism would not resemble the Confederacy....

First, the slave trade, not domestic slavery, was outlawed in 1808.

Second, the secrecy of the Constitutional Convention was no oversight or human failing. The Congress and most of the states (Rhode Island didn't even send delegates) had authorized the Convention -- which was then called the Philadelphia Convention or the Grand Convention; it wasn't called the Constitutional Convention until later -- only to correct and amend the Articles of Confederation. To draft an entirely new Constitution was illegal and contrary to provisions in the Articles of Confederation -- America's first Constitution, in effect. This is why two out of three New York delegates (Lansing and Yates) left the Convention in protest long before the Convention had concluded its business, leaving Alexander Hamilton, the third delegate, without a quorum. And this was one reason why George Mason, a distinguished delegate from Virginia who had written the Virginia Bill of Rights, said that he would rather cut off a hand than sign the finished document.

The Convention was held behind locked doors and closed windows, and delegates agreed not to publish any accounts of it for 50 years, for a very simple reason: The delegates didn't want their constituents back home to know what had gone on. Most would probably be dead in 50 years.

Third, the "correction" of slavery that you speak of was an unintended consequence of the Civil War. It cost 620,000 American lives, maimed and crippled many thousands, caused utter devastation throughout the South, and set the United States on a path to statism that we are still following.

I thought it was competing agencies that were supposed to end in conflict. But here we had this supposedly great constitutional government, formed in 1788, that resulted in more American deaths than any other war, including WWII. In the Civil War, the ratio of deaths to the total population was 1.988 percent. The next highest ratio occurred during WWII; it was 0.307 percent -- not even close.

Fourth, you obviously don't know anything about the Confederacy, but why should that surprise me? The Confederate Constitution followed the U.S. Constitution very closely, except for a few items -- such as the explicit authorization of slavery and a private postal service. Secession was forbidden under the Confederate Constitution. Does this sound similar to libertarian anarchism to you? Can you really be that daft?

I still haven't finished my next Cato Essay, which is due tomorrow morning, so I am going to take a break from this madhouse for a while. This will be my last response for now.

Ghs

Posted

Can you predict that your Rational Anachism would not resemble the Confederacy, The Mafia, Boss Tweed, The Bowery Boys or The Pug Ugly New York gangs? No one can predict what will happen because you have no signatories to a plan, or a consensus for a plan among a large group of people. You lack a plan.

Doesn't this imply a central planning perspective? How do libertarians and Objectivists respond when asked for a blueprint explaining how health care or education would work? In short, they can make broad, general predictions based on the spontaneous order of the market, But a "plan" is something mapped out in advance by someone independant of the system in question, which misunderstands the position of the anarchist.

Tim

Reinforcements, at long last!

Ghs

Posted

Getting to basics, and looking from the point of view of Rand's intent -

So, we tacitly hand over to our (hopefully minimal) government the responsibility to protect our person

and property from those who would initiate force against us. Why? because few of us desire, or have

the ability, to constantly protect ourselves. Second, because it is logical to have one, central Agent, equably protect

us with objective laws.

With the responsibility - and the duty - justly comes the right of that Agent to be the only one to wield that power.

It is obviously not the power to initiate force (illegal for both g-ment and citizen) and nor, I believe, the right to "retaliate" (an unfortunate choice of word imo) -

but the right and responsibility to "respond" on our behalf to the initiation of force... with force - for the sole purpose of our protection.

Okay, this is just semantics, but 'framed' this way it gives me a clearer idea about that "monopoly of force" thing,

and actually how much curtailed it really is. It is not the scary ogre we make it out to be.

Posted

Can you predict that your Rational Anarchism would not resemble the Confederacy, The Mafia, Boss Tweed, The Bowery Boys or The Pug Ugly New York gangs? No one can predict what will happen because you have no signatories to a plan, or a consensus for a plan among a large group of people. You lack a plan.

Mr. Taylor:

This actually supports the anarchist argument.

Your structured system that operates with the single centralized premise that ONLY the government/state has the monopoly on the initiation of force produced all of the above "evils" within your system.

There is a probability that the competing defense agencies could effectively eliminate those specific evils that your system produces consistently by your own admission.

Adam

a lover of negative evidence = high probative value

Posted

Getting to basics, and looking from the point of view of Rand's intent -

So, we tacitly hand over to our (hopefully minimal) government the responsibility to protect our person

and property from those who would initiate force against us. Why? because few of us desire, or have

the ability, to constantly protect ourselves. Second, because it is logical to have one, central Agent, equably protect

us with objective laws.

With the responsibility - and the duty - justly comes the right of that Agent to be the only one to wield that power.

Few of us desire, or have the ability, to manufacture our own shoes. Does this mean there must be one (and only one) producer of shoes, to ensure people don't go barefoot?

It's curious that libertarians and Objectivists are so keen on specialization and division of labour as part of the unintended benefits of a free market, but when the subject of protection, defense and adjudication come up, these insights are lost and the worst prejudices about free markets return.

Tim

Posted

It is possible and acceptable for a market to be mature to the point where all inefficiencies are evolved out and a single entity has a monopoly. Market monopolies are not by definition immoral.

To assign "evil" to all government when most people in the US at least live their entire lives in relative peace and prosperity unknown in earlier times is not the proper context. To call the constitution merely a "peace of paper" doesn't further any argument.

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