MCViewPoint

Opinion from a Libertarian ViewPoint

Posts Tagged ‘Constitution’

Freedom’s Only Chance Is to Eliminate Constitution Worship From the Minds of All Thinking Individuals

Posted by M. C. on June 29, 2022

By Gary D. Barnett

To put this in plain English, the masses are fully responsible for their own servitude because they voluntarily allow themselves to be lied to, cheated, taxed, manipulated, controlled, beaten, ruled, and murdered by the very people they purposely place in power over them.

“The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes – a large class, no doubt – each of whom, because he is allowed one voice out of millions in deciding what he may do with his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a “free man,” a “sovereign”; that this is “a free government”; “a government of equal rights,” “the best government on earth,” and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.”

Lysander SpoonerNo Treason No. 6: The Constitution of No Authority (1870)

Given all that has happened over the past 233 years, and especially the past three years, one might wonder why it is so vital to scrap the U.S. Constitution, (and eliminate government rule) and to cease immediately what in many cases could be considered Constitution worship. In fact, most will take considerable offense at the suggestion that the Constitution is a heinous document and a fraud, and in great part, has been the foundation of our liberty destruction. After all, many actually believe that this politician’s dream came directly from God. This could not be so if the American masses had not been duped into believing that a piece of parchment created and drafted in secret, in the dark of night, behind closed and locked doors; and by the very worst and most depraved element of society, politicians, was meant only to expand the powers of a centralized federal (national) government to levels so extreme as to defy sanity.

What level of nonsense is evident when the majority of the supposed most intelligent beings on earth believe that a political document can save them, give and protect their ‘rights’; all based on the absurd notion that all that is necessary for individual sovereignty is that an all-powerful government follow to the letter the same ‘rules’ it created for itself out of whole cloth?  Maybe this can be explained better by the master of propaganda, Edward Bernays, when he said:

“The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country. We are governed, our minds molded, our tastes formed, our ideas suggested, largely by men we have never heard of.”

To put this in plain English, the masses are fully responsible for their own servitude because they voluntarily allow themselves to be lied to, cheated, taxed, manipulated, controlled, beaten, ruled, and murdered by the very people they purposely place in power over them.

It seems that I get correspondence daily to the effect that if only ‘our’ constitution were respected and followed, we all would be saved, lights would shine in the heavens, happiness would flourish, bells would ring, prosperity and equality would reign, and government would restrict itself and become a paternal and loving master.

See the rest here

Be seeing you

Posted in Uncategorized | Tagged: , , | Leave a Comment »

TGIF: Alito’s Challenge to Libertarians

Posted by M. C. on May 14, 2022

by Sheldon Richman 

Note that Alito uses the term ordered liberty. That’s a concept in the case law, apparently first enunciated in 1937, that “sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things –SR] through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.”

Alito hastens to add that other court-protected rights that are not deeply rooted in history — such as the rights to contraception, interracial marriage, and same-sex marriage — are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

https://libertarianinstitute.org/articles/tgif-alitos-challenge-to-libertarians/

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find “rooted in [our] history and tradition” and deem “essential to our Nation’s ‘scheme of ordered Liberty.’”

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito’s draft in Dobbs v. Jackson Women’s Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That’s not his job. Rather, he’s concerned only with constitutional rights — liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That’s the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment’s due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries … are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, “[G]uided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty’ when the issue involves putative rights not named in the Constitution” — such as a woman’s putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That’s a concept in the case law, apparently first enunciated in 1937, that “sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things –SR] through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.”

If that counts as “proving too much,” libertarians would say let’s do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history — such as the rights to contraception, interracial marriage, and same-sex marriage — are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

See the rest here

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

TGIF: What Really Protects Liberty?

Posted by M. C. on May 2, 2022

by Sheldon Richman

The upshot is that if people’s values are not consistently pro-liberty, it won’t matter in the long run much what the Constitution “says,” and if they are pro-liberty, then it won’t matter whether there is a written constitution — or a state for that matter.

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist” – Lysander Spooner

https://libertarianinstitute.org/articles/tgif-what-really-protects-liberty/

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on “medical” matters. So, if judges furnish constitutional and other legal grounds against power grabs, we’re supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That’s pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas’s “The Myth of the Rule of Law.”) It’s only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: “The system works!” But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn’t with the Constitution; it’s with the judges. But considering that the Constitution doesn’t interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don’t agree on everything.

Since it’s people all the way down and the process is internal, not external to society, don’t the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a “parchment barrier.” But he couldn’t have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves — people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python’s Life of Brian in which Brian tells a prison guard that he doesn’t have to follow orders and the guard replies, “I like orders.”)

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered “non-essential” businesses and schools to shut down and people to stay home in 2020, those politicians didn’t point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

See the rest here

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

‘Open Borders’ Biden Is Remaking America

Posted by M. C. on April 19, 2022

What do these endless thousands of migrants at the southern gates of our country bring with them? A desire for a better life, surely, but also a vast dependency on a deeply indebted America for social welfare, housing, health care and education

Their first act on the road to residency and eventual citizenship in this country is to break the laws of the United States by first breaking into our country.

By Patrick J. Buchanan

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

So reads Article IV, Section 4 of the Constitution.

Historically, that constitutional duty — to protect America’s states against invasion — has been the province of the president of the United States, the chief executive, who today is Joe Biden.

How did Biden’s predecessors do in discharging their duty to secure America’s borders?

During the War of 1812, President James Madison assigned the defense of New Orleans against an invading British army that had just burned the Capitol and White House to Gen. Andrew Jackson.

On Jan. 8, 1815, Jackson crushed the battle-hardened and numerically superior British force that had invaded our country.

Jackson was also the chosen instrument of President James Monroe to punish and expel Indian marauders raiding Georgia from Spanish Florida in 1818.

Exceeding his mandate, the resolute Jackson entered Florida, expelled the Spanish governor and annexed the peninsula for the United States after executing two British subjects and almost igniting a war with Great Britain.

In 1845, President James K. Polk sent an American army to Texas to validate our claim to all the land north of the Rio Grande that had belonged to the Lone Star Republic when it seceded from Mexico in 1836 and joined the Union in December of 1845.

President Andrew Johnson sent an army to the Mexican border to effect the removal of a French army and Paris-backed regime that had colonized Mexico while the Union was preoccupied with the Confederacy.

The French departed, leaving behind the hapless Habsburg emperor they had installed to face a firing squad.

When Pancho Villa conducted his murderous raid into Columbus, New Mexico, in 1916, Woodrow Wilson sent Gen. John Pershing with an army of 6,000 into Mexico to run him down. They never caught Villa.

By Dwight Eisenhower’s first term, 1 million illegal immigrants had moved into the United States from Mexico. Ike commissioned his friend and West Point classmate Gen. Joseph Swing to effect their removal.

All of these incidents involved America’s southern border, and each of the presidents of that day took seriously their constitutional duty to defend the nation’s borders against invasion, violent or nonviolent.

And how has President Joe Biden discharged that obligation?

In Biden’s first year as president, some 1.7 million Illegal migrants were intercepted crossing into the United States.

The monthly figure from Fiscal Year 2021 was exceeded by the March 2022 figure of 220,000 migrants crossing over into the USA. If sustained, this rate would translate into an invasion of 2.6 million people, predominantly young and predominantly male, in this fiscal year alone.

“Gotaways,” those who breach our borders without ever being stopped and identified by Border Patrol or other authorities, are now estimated at 30,000 a month. Among these clandestinely crossing our border monthly are cartel members, child molesters, drug traffickers and sex offenders. We don’t know who they are, but we do know where they are. They are now our neighbors inside our homeland.

Biden is now planning in May to lift Title 42, which requires that unvaccinated migrants seeking entry at the border remain in Mexico.

According to ABC, the Department of Homeland Security is bracing for as many as 18,000 migrants per day at the US southern border if Title 42 is revoked.

Most of these migrants still come from Mexico, Guatemala, Honduras and El Salvador, but growing numbers now come from all over the world. They are of every race, nationality, culture, creed and ethnicity, and they are steadily converting America from a First World Western nation into a predominantly Third World country.

By failing or refusing to do his constitutional duty to defend the nation from invasion, Biden is letting this happen. Through his passivity and inaction, he is remaking America. What we are witnessing is the Third Worldization of the USA.

What do these endless thousands of migrants at the southern gates of our country bring with them? A desire for a better life, surely, but also a vast dependency on a deeply indebted America for social welfare, housing, health care and education

Most come with little in the way of skills and almost nothing in the way of personal wealth or a knowledge of our history, heritage and language.

Their first act on the road to residency and eventual citizenship in this country is to break the laws of the United States by first breaking into our country.

A move is afoot to impeach Biden for his failure to do his constitutional duty and defend the southern border of the United States from the invading millions of illegal migrants.

But that would make impeachment the subject of national debate, not the massive illegal migration and the changes it is producing in the character of our country.

Indeed, who stands first in line to succeed an impeached and convicted Joe Biden? Kamala Harris, Biden’s designee to act as America’s “border czar.”

Posted in Uncategorized | Tagged: , , | Leave a Comment »

Is This The Beginning Of The End For Gun Control? | ZeroHedge

Posted by M. C. on December 19, 2021

The question presented is: “Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a type of “Arms” that are in common use for lawful purposes?”

https://www.zerohedge.com/political/beginning-end-gun-control

Tyler Durden's Photoby Tyler DurdenFriday, Dec 17, 2021 – 11:55 PM

Submitted by The Machine Gun Nest (TMGN).,

If you haven’t heard yet, Firearms Policy Coalition has filed what may be one of the most critical petitions for writ of certiorari for Marylanders and possibly gun owners in general in the case Bianchi v. Frosh. The case itself centers around the Maryland “Assault Weapons Ban” (AWB), also known as SB281 or the Firearms Safety Act of 2013. 

But before we dive into the law itself, let’s look at the question being proposed to the Supreme Court in this writ of certiorari. The question presented is: “Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a type of “Arms” that are in common use for lawful purposes?”The way this question is asked, we can see that if decided in favor of gun owners, the overturning of the Maryland AWB would be an unprecedented victory for gun owners nationwide. A Repudiation of assault weapon bans would free states like California, Massachusetts, New York, and New Jersey from their tyrannical state governments who’ve imposed their versions of this “Assault Weapon Ban.” FPC’s Adam Kraut affirmed that position saying, “This case presents the Court with an ideal vehicle to both address the scope of protected arms and constitutionally infirm analysis applied by these recalcitrant lower courts.”The petition correctly describes the term “Assault Weapons” as a “pejorative and inaccurate label for a category of common semi-automatic firearms.” Then quoting directly from Heller goes on to describe those same firearms as “in common use” and “typically possessed by law-abiding citizens for lawful purposes.”Maryland’s AWB is an assortment of inconsistent rules and regulations thought up by bureaucrats in Annapolis who have little understanding of firearms they seek to regulate. A few examples of inconsistencies: AK pattern rifle chambered in 7.62×39? Banned. AK pattern rifle chambered in 5.45×39? Good to go. AK Pistol in 7.62×39? Good to go. The only difference between the banned rifle and pistol? The stock.It also bans the AR15 and other “Scary” looking rifles but allows AR15s that conform to a Heavy Barrel Profile, or HBAR. It also allows for rifles that are functionally identical to the AR15, like the Ruger Mini 14.Ultimately, we won’t know if the Supreme Court will hear the case until sometime in 2022, as The Supreme Court will hear it in their 2022 session. But the chances are good for the Court to take this case up. Many of the Justices have signaled that they’re ready to hear 2nd Amendment cases. If the recent NYSRPA v. Bruen is any indication, we will likely see them tackle more gun rights issues that have far-reaching implications.Also, the makeup of the Court has changed in recent years. With the addition of Amy Comey Barrett replacing Ruth Bader Ginsburg, the Court has a solid conservative majority. As lower court judges, Justice Barrett and Justice Kavanaugh signaled they think courts need to rethink the framework used to often measure how gun regulations are evaluated. This framework is known as “Intermediate Scrutiny.” When intermediate scrutiny is applied, a law has more of a chance to survive legal challenges because the government must prove only that it is “substantially related to an important government interest.”This intermediate scrutiny clause is what has kept not only the Maryland Assault Weapon ban in place but many other AWBs nationwide. If the Justices are looking for a case that has far-reaching consequences for the 2nd Amendment and the process by which states uphold these unconstitutional laws, they need look no further than Bianchi v. Frost.This is why I posed the question: “Is this the beginning of the end for gun control?”In our coverage of gun control issues over the past year, we’ve seen a clear pathway that the anti-gun lobby is taking. Using the NFA, 1968 GCA, FOPA, and other gun control laws on the books, they’ve managed to ban Bump Stocks and inch closer and closer to regulating semi-automatic firearms under the NFA or outright ban them. This Case, Bianchi v. Frost, would put a significant roadblock in front of that.

Be seeing you

Posted in Uncategorized | Tagged: , , , , , | Leave a Comment »

A Republic, Not a Democracy

Posted by M. C. on December 19, 2021

The design of our constitutional republic, for better or worse, was to protect individual liberties and private property by limiting the power of government. That’s why leftists hate it.

by Scott McPherson

Late-night political hack and former comedian Stephen Colbert doesn’t usually warrant any notice, but he stumbled onto an important truth recently. Lamenting the possibility that the Supreme Court may overturn Roe v. Wade, he whined that if only 27 percent of Americans (according to a Washington Post/ABC News poll) support such a move, and the court doesn’t vote the way he and a majority of Americans prefer, “We don’t live in a democracy.”Democracy or a republic? I say: Let’s restore our founding system — a republic — to our land. That would be something to celebrate.
[Click to Tweet]

But we weren’t supposed to live in a democracy. We were supposed to live in a republic.

A story, probably apocryphal, is told that upon exiting the Pennsylvania statehouse at the conclusion of the Constitutional Convention in 1787, Ben Franklin was approached by a passerby. “What have you given us,” the woman asked him. “A republic, if you can keep it,” he replied. While the word “republic” to a Democrat is like a cross to a vampire, it is unquestionably the type of government the Founders created in our Constitution. The design of our constitutional republic, for better or worse, was to protect individual liberties and private property by limiting the power of government. That’s why leftists hate it.

The word “democracy” does not even appear in the Constitution, nor does it appear in that document’s philosophical antecedent, the Declaration of Independence, which stated boldly the revolutionary idea that everyone is “endowed” with unalienable rights – to life, liberty, and the pursuit of happiness. This assertion upended the idea that individuals were mere “subjects” beholden to their betters, cogs in a machine worthy of consideration only insofar as they served the purposes of the elite. The Framers wanted regular elections, but that was simply a peaceful means to eject recalcitrant politicians acting against the interests of the people.

Anti-democratic mechanisms were consciously built into the Constitution. Inspired by an eighteenth-century French political philosopher named Baron de Montesquieu, a system of checks and balances was established. The executive, legislative, and judicial branches were created, each with the ability to stymie the others. Members of the U.S. House of Representatives, elected directly by the people, could pass legislation, but it could die in the Senate; a bill passed through both chambers faces a potential veto from the president, chosen via an Electoral College, not popular vote, and a super majority is required to override that veto. Finally, despite overwhelming support, courts can strike down any law that violates the Constitution.

Interestingly, in a recent report that could easily have been written by a member of the Democratic Party, the Chinese Foreign Ministry specifically highlighted this as proof of our system’s alleged failure. It read in part, “The U.S. political system has far too many checks and balances, raising the cost of collective action and in some cases making it impossible altogether. . . . There is an entrenched political paralysis in the U.S.” [Emphasis added]

This analysis, meant as a criticism, is actually very revealing. Afterall, when Communists are upset about something, it’s likely good for individual freedom! Leftists get misty-eyed when talking about “democracy,” claiming they simply want to “empower” the “common people,” but the truth is they despise voters and are happy with the electoral process only when things go their way. Witness their reaction to the recent election in Virginia, which leftwing commentators denounced as “racist” – despite the victory of a female black immigrant (!) in her run for lieutenant governor. The long-serving president of the state senate in New Jersey was defeated by a truck driver, in his first bid for public office. The left-wing Atlantic smeared his victory as “populist moonshine.” Arch-“progressive” Hillary Clinton claims – oblivious to the irony – that a Trump victory in the 2024 election will spell  “the end of our democracy.”

The Framers wanted it to be difficult to pass laws. They also wanted the sphere in which government acted to be quite small, enumerating the limited powers of Congress in Article I, Section 8, of the Constitution. Further protections are found in the Bill of Rights—the 10 amendments to the Constitution forbidding government from infringing the rights of Americans -– even with majority approval. For example, the First Amendment shields unpopular speech from criminal prosecution – no matter what; the Sixth Amendment guarantees that a criminal defendant will be tried by an impartial jury – not by popular opinion or by vengeful government officials; the Eighth Amendment protects the worst offender against “cruel and unusual punishment,” even if the mob wants his head on a pike.

Democracy or a republic? I say: Let’s restore our founding system — a republic — to our land. That would be something to celebrate.

This post was written by: Scott McPherson

Scott McPherson is a policy adviser at the Future of Freedom Foundation, and author of Freedom and Security: The Second Amendment and the Right to Keep and Bear Arms. An advocate of the Free State Project, he lives in Portsmouth, New Hampshire.

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

Watch “The Constitution and Economic Liberty” on YouTube-Future of Freedom Foundation

Posted by M. C. on December 6, 2021

https://youtu.be/1kTH8X7e0Es

Be seeing you

Posted in Uncategorized | Tagged: , | Leave a Comment »

Government

Posted by M. C. on December 5, 2021

May be an image of text that says 'CIVICS: The Government does not grant rights. 101-1 The Government has no RIGHT to grant ANYTHING. In a government of the people, by the people, and for the people- The Government has PRIVILEGES granted to it by the PEOPLE! The Constitution was written to PROTECT the People's Rights from the Government, and to tell the Government what privileges it was granted by its people.'

Be seeing you

Posted in Uncategorized | Tagged: , | 1 Comment »

Why Trials Are Better Than Plea Bargains | Cato at Liberty Blog

Posted by M. C. on November 20, 2021

But at least that disagreement will be an informed one based on the evidence presented in a public jury trial, just as the Founders intended. We are deprived of that opportunity for civic engagement every time a case is resolved through a guilty plea instead of the public jury trial that the Constitution wisely provides. The time is long overdue for us to take a fresh look at our decision to pursue efficiency in the adjudication of criminal charges through coercive plea bargaining to the exclusion of every other constitutional value.

https://www.cato.org/blog/why-trials-are-better-plea-bargains

By Clark Neily

Surprising almost no one, the jury in the Kyle Rittenhouse prosecution returned a verdict of not guilty on all charges, including intentional and reckless homicide. The verdict may be unsurprising given how the trial unfolded, with a singularly unimpressive prosecution team making one blunder after another and a trial judge who some perceived to be unduly favorable to the defense, but it will nevertheless strike many people as inappropriate and even unjust in light of all the circumstances.

But as I argue in a piece published in the Washington Examiner hours before the verdict came down, the most important—and unusual—thing about the Rittenhouse case was the fact that it went to trial at all. That’s unusual because more than 95 percent of criminal convictions in our system are the product not of constitutionally prescribed jury trials, but instead of an ad hoc, extra‐​constitutional, and often jaw‐​droppingly coercive process that we refer to euphemistically as “plea bargaining.” As explained in the Examiner piece, plea bargaining has been an absolute train wreck of a policy that regularly produces false convictions and puts the government in the historically squalid and abuse‐​prone role of inducing people to condemn themselves.

Given the sheer amount of attention they devoted to trial by jury (among other things, it’s the only right mentioned both in the body of the Constitution and the Bill of Rights), the Framers’ intent to put citizen participation at the very heart of the administration of criminal justice is unmistakable. It was also incredibly wise because allowing government actors (including particularly judges and prosecutors) to dictate the results of criminal prosecutions represents a short and slippery slope to tyranny. Indeed, in a piece for Cato’s Policy Report, I compared the effect that the near‐​total elimination of jury trials has had on the criminal justice system to the effect that the extinction of a keystone species like honeybees would have on the ecosystem: complete and utter disaster.

In sum, reasonable people can and will disagree about whether Kyle Rittenhouse was guilty or innocent. But at least that disagreement will be an informed one based on the evidence presented in a public jury trial, just as the Founders intended. We are deprived of that opportunity for civic engagement every time a case is resolved through a guilty plea instead of the public jury trial that the Constitution wisely provides. The time is long overdue for us to take a fresh look at our decision to pursue efficiency in the adjudication of criminal charges through coercive plea bargaining to the exclusion of every other constitutional value.

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

What Spooner Can Teach Us in Our Age of Neofascism | Mises Wire

Posted by M. C. on October 24, 2021

Lysander Spooner argued that there is “no treason” against the Constitution because it has no authority over Americans. Another nail in the Constitution’s coffin, and a powerful rejoinder to the neofascism of the hour, should be neo-Spoonerism: there is no treason against the federal government, because the federal government does not abide by the document which it claims as its foundational authority to govern.

https://mises.org/wire/what-spooner-can-teach-us-our-age-neofascism

Jason Morgan

Mises Wire readers are probably familiar with nineteenth-century American proto-libertarian Lysander Spooner (1808–87). Spooner’s radical challenges to statism are best summed up by the title of Murray Rothbard’s edited collection of Spooner’s greatest writings: Let’s Abolish Government. Spooner was a great American, an anarchist committed to the free administration of justice, anticollectivism, dismantling slavery, and preventing the federal government from setting up a new kind of nationwide statist enslavement on the ruins of the wartorn South.

Lysander Spooner’s most prominent work is probably his post–Civil War tract No Treason. Spooner wrote No Treason to argue that secession from the federal union is no crime.

Of this work, section 6, “The Constitution of No Authority,” stands out. In “The Constitution of No Authority,” Spooner saps the battlements of the federal edifice, the Constitution itself. The Constitution, he writes, is at best a contract, and even then at best a contract among the very few “who had already come to years of discretion” living at the time who were consulted on the document. The Constitution begins with “We, the People,” but Spooner pulled the curtain back on that rhetoric to argue that “the People” could mean, at most, the people alive and of majority age who had some say in how and when the document was signed and ratified. That is all.

The Constitution,” Spooner writes, “so far as it was their contract [referring to the handful of people with a hand in making the document], died with them.” The entire sentence is emphasized in the original. Lest anyone miss the meaning, Spooner begins the section with his conclusion: “The Constitution has no inherent authority or obligation.”

In other words, no one living in Spooner’s time, approaching a century since the Constitution was hammered out and inked at the bottom, can be said to be engaged in unconstitutional acts. Because there is no Constitution, Spooner says. Whatever it was, it ended when the people who signed it passed from the scene. The framers “had no natural power or right to make [the Constitution] obligatory upon their children,” he writes. Americans cannot and should not be bound by contracts which some people made among themselves long ago.

In short, because there is no Constitution, there is “no treason.”

(As for the arguments that voting and paying taxes count as tacit agreements to participate in the Constitution’s imagined governmental regime, Spooner demurs. People could vote without a Constitution as well as with one, he says, and paying taxes is akin to being the victim of highway robbery, to which no person would consent if he had the choice. So, neither voting nor paying taxes implies a personal ratification of the parchment from 1789.)

Spooner’s pioneering arguments against organized theft known as centralized government are especially powerful in our time. I would love to have read Spooner’s assessment of the 2020 “election,” for example, and his views on the “stimulus,” inflation, shortages, counterfeiting, polymorphic infrastructure, and imperialist boondoggles which the 1789 Constitution has placidly overseen. I think Spooner might have said, in a Massachusetts deadpan, “There is no treason in checking out of that mess. There is no reason not to.”

But if Lysander Spooner were alive today, and were reprising “The Constitution of No Authority,” he might take much farther some of the elements found in his original work. He might push his arguments so far as to give rise to a new kind of Spoonerism, a neo-Spoonerism. I think this neo-Spoonerism would be the natural complement to the original. For the obverse of the Constitution’s having no authority is the plain fact that no one who purports to uphold the Constitution actually does so. Not only is the document itself void—not a single soul among us having signed it, as Spooner argues at great length. But even if “We the People” had signed such a contract, it would still be void, because the counterparty, namely the government, has violated, I think it is no stretch to say, every single promise and clause. The Constitution is invalid on its face, and invalidated by egregious and habitual breach.

Spooner points this out in a narrowcast way in “The Constitution of No Authority.” He writes:

It is no exaggeration, but a literal truth, to say that, by the Constitution—not as I interpret it, but as it is interpreted by those who pretend to administer it—the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be ‘questioned’ as to any disposal they make of them. (pp. 22-23; emphasis in original)

The Constitution creates an absurdity, Spooner argues, in which the document claiming to safeguard our liberties makes us the “property” (Spooner’s term) of the government. On the Constitution’s own terms, the Constitution does the opposite of what it purports. This, too, Spooner says, is a mark against anyone’s having to abide by it.

But let us take a much broader view of the Constitution and its applications. Much has changed since Spooner’s day. Do those who claim constitutional authority abide by the Constitution? Do they legitimately work within the confines of the document which we are to believe gives them the right to govern “the People”? If they do not—that is, if the government itself does not follow the Constitution—then there is a second powerful argument extending from Spooner’s original insights and reinforcing them.

This is neo-Spoonerism, as I call it, or the argument that the Constitution has no authority in the broad sense as well as the narrow. Not only does the Constitution fail on the technical charges Spooner brought against it, such as that no one living today signed it and that the government which the Constitution sets up is the opposite of what it claims. But also, and perhaps even more damning, no one in government today even abides by this specious document in the first place. The Constitution is undone by itself, by reason, and by circumstances. The third, circumstantial indictment of the Constitution is what I refer to as neo-Spoonerism, an organic outgrowth of the Spoonerist philosophy.

To test this hypothetical neo-Spoonerism, choose any part of the Constitution at random and see whether it is being faithfully observed. For example, from Article I, Section VIII: “The Congress shall have the Power to … raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” This is evidently breached.

Or, from the Bill of Rights, Sixth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” On this, for a start, let us call the National Security Agency, the Federal Bureau of Investigation, and every Foreign Intelligence Surveillance Act judge on the list to the witness stand. Just to get warmed up.

Or from the Bill of Rights, Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Civil asset forfeiture seems almost a parody designed to flout this Amendment, and the spirit of the Constitution as a whole.

This list could go on for quite some time. I did not even touch the Ninth or Tenth Amendments, by a faithful reading of which the majority of the federal Colossus would have to be torn down. The federal government is tracking and trammeling our speech, limiting our freedom of assembly, endangering us with reckless involvement in foreign wars, keeping political prisoners, staging coups against sitting presidents, forcing us to inject experimental serums, and shadowing journalists. Does it make “the People” any more than mocked fools to abide by the Constitution when the “people’s government” does no such thing?

Lysander Spooner argued that there is “no treason” against the Constitution because it has no authority over Americans. Another nail in the Constitution’s coffin, and a powerful rejoinder to the neofascism of the hour, should be neo-Spoonerism: there is no treason against the federal government, because the federal government does not abide by the document which it claims as its foundational authority to govern. Author:

Contact Jason Morgan

Jason Morgan is associate professor at Reitaku University in Kashiwa, Japan, and was a 2016 Mises Institute Fellow. For a list of his books and publications, see his personal site.

Be seeing you

Posted in Uncategorized | Tagged: , , | 1 Comment »