With conservatism a muddled, spent and failed movement, only libertarianism remains a viable obstacle to progressivism, the nation’s ruling ideology for decades which is stronger than ever.  Progressives have run Detroit for many decades.  Progressives, with considerable assistance from conservative Republicans on the state and national levels, are responsible for the numerous policy failures that combined to turn a once great city into ruins.  Those policies include: government schools and busing, welfare, the drug war, public employee unions, oppressive taxes and regulations on business and citizens, and the overall concept of government as the political means of acquiring wealth as opposed to the old-fashioned approach of productive work. This is a great opportunity for libertarians to explain, as the media will not, how progressivism destroyed Detroit.  It is a great opportunity to promote libertarian solutions to Detroit’s problems.

The future of the Liberty Movement is direct action not politics.  As I explained in detail in Direct Citizen Action, politics is a rigged game.  Like the Union army at Gettysburg, the political class loves to be attacked at heavily fortified positions and where they can see the enemy coming a mile away.  We need to respond to the collapse of Detroit and other large Americans cities not by electing reform candidates or lobbying or circulating petitions but by direct action and entrepreneurship.  We need to withdraw from failed government institutions such as government schools and urge others to do likewise.  We need to encourage people to figure out how to solve their own problems without looking to politicians.  We need to figure out how to start business firms that compete with the failed government “services” such as the police.

As Karen De Coster has documented on this site, this movement is already well underway in Detroit.  The State’s collapse is the Liberty Movement’s opportunity.  Let’s not waste a crisis.

The fall of Detroit was itself the result of direct action.  Instead of staying and trying to change the City through politics, hundreds of thousands of residents fled to the suburbs or to other states.  They voted with their feet to unilaterally elect a different and less oppressive government.  While they did not so as part of an organized movement, voting with your feet is now an explicit and important tactic of the Liberty Movement thanks largely to the Free State Project.  In Direct Citizen Action, I discussed and endorsed the Free State Project—which urges libertarians to move en masse to New Hampshire to reinforce that state’s already libertarian direction.  Voting with your feet is a tactic the Liberty Movement should be heavily promoting and facilitating.

Another powerful direct action tactic is a massive simultaneous withdrawal from the government schools.  As with voting with your feet, this trend existed in modest form through homeschooling before it became an explicit part of Liberty Movement strategy and tactics.  Now, it needs to be explicitly promoted and facilitated by the Movement as I proposed in my book, Government Schools Are Bad for Your Kids.  An effort should be made to urge parents in Detroit to pull their children out of the horrid government schools there and into either private schools, or home schools or even some combination of the two.  Let’s start a National Homeschool Day in Detroit on the first scheduled day of school this September.

Progressivism is the fiction that government coercion can produce better results than voluntary cooperation among people.  A key implied premise of progressivism is that government action, government expenditure of resources, is cost-free.  Because the proposition is absurd on its face, it is never stated explicitly.  It is nevertheless implied in virtually every progressive idea or policy.  Progressives have no theory of costs.  If they did, progressivism as an idea would disintegrate due to the progressive’s inability to explain  why the benefits of their programs are worth the costs.  This they can never do because cost and benefit are subjective as Rothbard has explained better than anyone else has.  There is no rational, logical or scientific way to prove that $1000 taken from the taxpayer by force is worth $1000 added to the Mayor’s Summer Youth Program or any other government program.

Rather, the progressive simply ignores costs and pretends that resources are not scarce but unlimited.  Since there is no firm political limit to government growth, the progressive fantasy can appear to be true for a number of years.  There is, however, a natural limit to government growth that has been seen throughout history.  Government is a parasite on its host, society.  Too much parasitical activity, unrestrained by the rigged political system, will over time kill the host.  When the host dies, the government collapses.  Such is Detroit with the additional proviso that in the case of local government, the host can simply move away from the parasite with the same fatal results.

Thus, the collapse of Detroit illustrates the lesson of free market economics that all resources are scarce and ignoring that law of economics will lead to disaster.  Every progressive policy is a Detroit waiting to happen.

Another happy consequence of Detroit’s collapse is to create uncertainly among the political class about receiving the loot they stole fair and square.  The prevailing attitude among the political class, government employees, pensioners, grant recipients and contractors and T-Bill buyers is that the spigot will never stop flowing their way.  They believe that the government’s taxing, borrowing and inflating powers will ensure they will always be paid in full.  This of course is another way of saying that resources are not scarce.  Let us hope that, as with normal bankruptcies, the creditors will be paid only a fraction of what they are owed based on the limited assets of the bankrupt city.  This will serve as a warning and deterrent against those who seek to leave the working class and join the political class.

Finally, while Detroit may be broke, the city owns a huge portion of the real estate in the city.  Instead of bailouts from the state or federal government, the city should be forced to liquidate hard assets to pay creditors.  This will permanently return real estate and buildings to the private sector where their use will be determined by market forces as opposed to the short-term self-interest of politicians and bureaucrats.

All in all, the bankruptcy of Detroit was a great day for a Liberty Movement that has not seen too many good days in recent years as the progressive state speeds merrily along towards totalitarianism.  Let’s make the most of it!

Recently by James Ostrowski: My Remarks at the AmherstNY Presidential StrawPoll

Note: This is the text of my remarks to the Buffalo Second Amendment Rally on February 23, 2013.

I want to talk today about some things they don't teach in government school and that the lying progressive politicians won't tell you.

The right to bear arms is a natural right of the individual. It wasn't and isn't granted by the government or the Constitution or some slimy politician any more than your right to breathe comes from the government. If you have the right to life, then you must have the means to defend that life against those who would stop you from breathing or who would turn you into a slave or a laboratory rat, which, judging from current trends, appears to be about where we are headed in this country.

We live under the most powerful government that ever existed and it's getting bigger and stronger every week as new laws are passed taking over more and more aspects of life that used to be free. There is no literally no aspect of life, no matter how trivial or formerly private that progressive politicians do not have designs on: Little League football, the size of soft drinks, or what you say on Twitter about your government school jailers. These days, there is no aspect of your life, liberty or property or family life that is absolutely secure against this crazed progressive onslaught.

That is why we must resist this current gun grab by all means the Founding Fathers sanctioned in the Declaration of Independence including the right to alter or abolish a government destructive to our liberties. That's right, Governor, abolishing this government is on the table.

Now, these days, those words in the Declaration are ignored or edited out when politicians quote the document. Rather, the phrase "all men are created equal" is offered up as some sort of Marxist balderdash about the state making us all equal. The meaning of that phrase is clear, however. We are all equal in natural rights such as liberty which precludes any form of progressivism, socialism or Marxism. Sorry Barack!

Consider this. Isn't the right to bear arms implied in the right of revolution that is proclaimed in the founding document of our nation? Of course it is. Good luck fighting a revolution against a state that can send a drone to your house and make you disappear when all you have to fight back is a squirt gun.

Not only is the right to bear arms implied in our founding document, but the actual start of the revolution was an act of resistance against British gun control at Lexington and Concord. America was born when the Minute Men picked up their privately-owned muskets and formed a line of defense against government troops coming up the road to take their guns away.

They don't teach this stuff in government school.

It is critical to realize that progressives never address the actual reason for the right to bear arms. Rather, they seek to confuse the issue by answering arguments for the right to bear arms that were never made. The Second Amendment has nothing to do with hunting, sport or target shooting, or collecting antiques and its main purpose is not to allow you to protect yourself from criminals although that is a secondary and important purpose. It is an undeniable historical fact that the central purpose of the right to bear arms is to allow the people to protect themselves against the government.

Now, why do progressives ignore or pretend not to know the true purpose behind the Second Amendment even though our side has been explaining it for many, many years? Two reasons. First, they cannot rebut the argument! History and logic show that governments are dangerous to people when they get too much power, get too crazed in their ideologies and when the people are weak, disorganized and unarmed or disarmed. In the 20th century, 170 million people were murdered by their own governments according to historian RJ Rummel. The Soviets, a US ally, killed 62 million; the Communist Chinese killed 35 million. The Nazis killed 21 million. US ally Nationalist China killed 10 million. Japan killed 6 million, Cambodia killed 2 million and Turkey killed 1.8 million.

How can they deny obvious facts? Can they argue that Germans are so different from Americans? After all, they were an advanced Western, Christian nation and German-Americans are the largest ethnic group in America. To say it can't happen here is a bad argument. They could argue that the US state has never engaged in mass murder against its own citizens but that's a bad argument because our citizens have always been well-armed, so that proves our point. That's another bad argument they don't make.

So, instead of making bad arguments against the true purpose of the Second Amendment, they make good arguments against an imaginary Second Amendment that never existed. It's extremely effective in a population short on critical thinking skills they never learned in government school. If government schools taught critical thinking skills, the first thing the students would ask is why the hell in a free country does the government have the right to kidnap children for 12 years, send them to daytime juvenile detention centers run by progressive Democratic union members and send their parents the bill, threatening to foreclose on their houses if they don't pay up?

The second reason why progressives never confront the true reason behind the Second Amendment is even more interesting and more important. The notion that a government with a monopoly of armed force could be an evil thing is abhorrent to them. It goes against the core of their ideology – that government guns pointed at peaceful citizens can create a utopia on earth. That can't happen if the citizens are pointing guns back.

But progressives don't want to admit that their ideology contains no room for privately-owned guns since there presently is too much support for the right to bear arms. So, again, they simply ignore the issue and try to confuse people by talking about hunting, target shooting and shotguns for home defense. By narrowing the scope of the purposes of gun ownership, they hope to be able to continually chip away at gun rights until all private guns are banned which is of course their actual goal. The more honest among them will admit, in response to our question – what do I do when a burglar tries to break the door down – "Call the police." Right, so the crime historians can draw a chalk line around your family's bodies and call the medical examiner.

But that's what they think. They really believe we would be better off if only the government had guns. That's why they love to cite phony statistics that Professor Kleck has refuted that allegedly prove that guns in the home are likely to be used, not for defense, but against one of the members of the family. They really think we'd be better off without any guns even though they won't admit it. That's why Cuomo's treasonous gun law is not the end, any more than that weasel George Pataki's gun law was the end in the 1990's. Since progressives are utopians who wish to use the power of the state to make life perfect on earth, there is never an end to their efforts to grab power from us.

Here's another thing you won't learn in government school or out of the mouths of lying progressive politicians. Most crime in America is caused by failed progressive policies such as welfare, the war on drugs and government schools. By their very nature, progressives are unable to acknowledge the failure of their own ideology. So they use guns as a scapegoat to distract attention away from their failures and avoid having to change their policies. The data is clear. The rise of the welfare state led to the destruction of the family unit in minority communities. Fathers left the home and teenage boys joined criminal gangs as a perverted form of father substitute.

Government schools failed to provide what was missing at home and merely served as a recruiting ground for gangs and a distribution point for drugs. Local high schools in this area compete for the nickname, "heroin high." The progressives' war on drugs is an abysmal failure which merely sucks poor kids into a criminal and violent lifestyle once they realize that government school gave them no job skills and that progressive policies sucked all the economic vitality out of once bustling inner city neighborhoods.

Now, we don't really know much about the cause of the latest school shooting – they are suppressing the lab report and other information. But we do know that several school shooters were bullied in government school and went back for revenge. Also, the politicians brag that they have made government schools gun-free zones, assuring mass killers of an easy target.

The state kidnaps kids, bullies them, turns them into bullies of the weaker, gives them dangerous psychotropic drugs, then leaves the students defenseless, and it's the fault of the shotgun locked in your safe at home? That's madness. School shootings are a failure of progressive policies. They invented the daytime juvenile detention center in the first place. Beyond school shootings, government schools are bad places for your kids for reasons I explained in a book and you should take them out anyway and soon.

I'm not going to argue statistics today but consider the fact that the folks in suburban and rural areas surrounding Buffalo are armed to the teeth but do not suffer from the decades-old crime wave and reign of terror criminals have imposed on the city of Buffalo. Case closed. Why should guns be confiscated from law-abiding people because progressives have unleashed a crime wave in America?

By the way, if you want people to accept your right to possess private property, guns, you had better consider accepting the right of other people to possess private property, drugs, if they so choose. Liberty is seamless and does not allow for exceptions. Liberty is doing what you wish with what you own. Doing what you wish with what you own. In fact, the war on drugs has proved to be the major driving force behind the war on guns. Same war, different name.

A couple more things they don't teach in government school. Progressives don't hate guns; they love guns. They love them so much they want to be the only ones who have any. They want a gun monopoly. Again, a progressive is a person who has this fantastic dream of creating a utopia on earth by threatening people with government guns if they don't comply with their utopian schemes. The difference between progressives and us is this. They want to use guns aggressively, to make peaceful people do things they don't want to do. We wish to use them only defensively, to stop a government that gets out of control and engages in mass murder, or systemically tramples the Bill of Rights.

The progressive state uses guns against us on a daily basis to impose their will on us. Yet, to my knowledge, not a single Patriot has fired a gun back. We have exercised remarkable restraint. So, again, the government schools, the politicians and the mainstream media lie. The truly violent gun fanatics and gun lovers are the progressive gun grabbers, not us.

One last point before I close. I have seen very few African-Americans at these rallies. I don't understand that. No group has suffered more under government tyranny than blacks. The federal government kept them in slavery for 75 years. Slavery is a form of slow motion, mass murder. After slavery, governments took their guns away and failed to provide police protection.

One of the purposes of the 14th Amendment was to allow blacks to own guns for protection. Blacks are more likely to be the victims of violent crime. Finally, if you study the history of the various mass murders perpetrated by governments, they very often are aimed at ethnic, racial or religious minorities as they were in Germany and Turkey. If I was a member of a racial minority in a hostile world, I would be a ferocious defender of the right to bear arms.

So those are a few points about the right to bear arms they don't teach in government school and that you won't hear from lying politicians or the state-controlled media.

James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

Note: Ron Paul won the straw poll with 30 votes. Santorum had 25, Romney — 21 and Gingrich — 18.

Opening Statement. I want to thank the Amherst Republican Party for hosting this event and inviting me to participate and present Ron Paul's views on the issues. I am proud to support Dr. Paul who is the only candidate to visit this area during the campaign. In August, he took time off from a family reunion to speak to 700 people who came to see him on just three days notice.

Before we get into the issues, I want to urge you to put aside the media propaganda and consider supporting Dr. Ron Paul. Contrary to what the media says, he can win the nomination and he can beat Obama. Ron is only 8 delegates behind the current frontrunner Rick Santorum. The other two candidates are fading. And not only can Ron beat Obama, he's the only one who can unite the broad coalition necessary to do so.

Ron polls particularly well among young people, independents, working class people and people in the Northeast. He is strong where Obama is strong. Obama's people won't say so but they are terrified of Ron Paul. In the Rasmussen poll, Ron Paul holds Obama to just 44%, his lowest number against any Republican candidate. Finally, Ron Paul is the only Republican who will not face a serious libertarian third party challenge.

So, not only has Ron Paul been right for a long time about the interrelated key issues facing the nation: war and peace, the economy, spending, taxes and inflation, but he is the best chance, really the only chance we have to make Barack Obama the next resident of the United States.

Closing Statement. The American nation is in a state of great crisis. It's the crisis of liberalism, the notion that government force could create a Great Society. Liberalism failed and it's bankrupt and continuing on the current path will lead to disaster.

Of the five remaining men who could be the next president, Ron Paul is the only one promising to take a different path, the path of limited government and individual liberty. All of the others have been part of the problem we need to solve. Regardless of what they call themselves — watch the hands not the mouth — they have all supported big government policies and still do. At the end of the day, they trust government to solve our problems. Ron Paul knows that the government has created most of our problems and he will trust you and your liberty to solve them. Only Ron Paul has proposed any real spending cuts. Ron Paul's commitment to cut one trillion and five federal departments is a good start.

Let me ask the young people here today. Do you want Democratic and Republican politicians like Obama and Santorum to make you pay for the mistakes of the past by piling up more federal debt? And to their parents and grandparents — do you really want to bequeath to your children and grandchildren a bankrupt, depressed and declining nation?

Big government causes problems and divides people. Only Ron Paul's platform of liberty can solve these problems and bring our three generations together and guarantee a bright future for America.

James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

I have an idea. Let’s pick a federal agency that is arguably extra-constitutional, notoriously corrupt, useless, wasteful, and has a proven history of making life worse for almost everyone it touches (except the bureaucrats and contractors of course.) Let’s also choose an agency that has a sizable budget. Granted, the 1994 sellouts would not even cut the tiny subsidy to the NEA when I challenged them to do so the last time. But the tea party movement has raised the bar and we will not be satisfied with a miniscule "sacrifice.” No, this offering up of political power and pelf has to really "hurt." It must be in the many billions of dollars. And it must be a complete elimination with no programs transferred to other federal agencies. Under true federalism, these functions could very well be absorbed by the states but that’s not our concern here. So be it. People can and do vote with their feet to escape high-tax states such as New York and fly to low-tax states such as New Hampshire. The Free State Project has institutionalized this efficient form of direct citizen action.

So, Ladies and Gentlemen, I give you the acid test which will allow us to know if these tea party officials are serious or are just a bunch of egotistical politicians seeking a DC diversion from life "down on the farm."

The agency that they should abolish or at least de-fund is HUD. I could write a book about the damage HUD has wrought in its history and prominent libertarians James Bovard and Thomas DiLorenzo have exposed its failure in many articles over the years. A panoramic review will suffice here.

HUD has destroyed many urban neighborhoods and replaced them with gigantic Soviet-style public housing projects that are breeding grounds for crime and despair. In many cases, such as in my hometown of Buffalo, neighborhoods were destroyed and replaced by nothing! At 19:52 of The Incredible Bread Machine, Rothbard does a stand-up routine (sitting down) on how the federal bulldozer destroyed more housing units than HUD built. Billions of HUD development funds have been wasted (of course) and funneled into payoffs to contractors who kick back donations to keep the slimeballs in power. In Buffalo, about $556,000,000 was spent in recent years and it’s difficult to figure out where it went other than patronage jobs. HUD helped cause the mortgage meltdown by subsidizing mortgages that credit-unworthy home buyers could not afford. HUD is a poor manager of its properties, many of which are decaying and many of which have already been demolished. HUD has been called "the worst landlord . . . in the United States."

The actual solution to the problem of affordable housing is of course to be found in the free market. Government creates its own demand here as in other areas. First, it inflates the cost of housing through regulation, taxes and zoning. Then, it reduces the income of the poor through taxes, fees, occupational licensure, compulsory schooling and many other regulations. Having manufactured large numbers of poor people and created a shortage of affordable housing for them, it then created HUD in an attempt to solve the problem. It failed to solve that problem but created many new ones. It’s time to break the cycle of government failure leading to government programs that fail and create the demand for even more programs.

Why abolish HUD and not Education or Agriculture? Mainly, politics. Abolishing food stamps or student loans would be politically difficult right now. I want to make it easy on the tea partiers to do the right thing. Let’s start with HUD and maybe the savings can be used to phase out other federal departments. One step at a time beats sitting on your rear.

But, you say, it’s also politically impossible to abolish public housing. However, there is an easy answer to that concern not available with student loans or food stamps: privatization. Turn ownership of these units over to the current occupants. Don’t evict them; give them a deed. There’s no space here to argue the right and wrong of this proposal. My point is merely to show how to abolish HUD in a politically palatable way. Almost any means of privatization of assets is preferable to allowing them to stay in the public sector.

Leaving politics aside, privatization would produce many benefits. With the incentives of ownership, the occupants would take better care of their property. They would have an incentive to invest in the property rather than merely consume it. They would have an asset to use to borrow money for starting businesses. They would have greater control over the use of their apartments for business purposes. Privatization would help end the cycle of poverty whereby generation after generation has almost zero net worth and thus are easy prey for politicians promising a free ride. Owners could sell their apartments and move into a single-family home if they so choose. Security would improve as the people who live in these units gain control over access to their buildings. Of course, I can’t possibly list all the benefits of the free market applied to housing. That’s the great thing about the market — it’s much smarter than any one person.

Abolishing HUD would also shrink the political class by over 10,000 employees. That is 10,000 fewer people who will donate money and volunteer for politicians and automatically vote for the bad guys. HUD’s budget is about $48,500,000,000. That’s not pocket change. In my book, Direct Citizen Action, I emphasized the importance of starving the beast. My rule of thumb is that one percent of government spending will be siphoned off for direct use by the political class to maintain power. Thus, abolishing HUD takes $458,000,000 away from the political class for campaign funds and deprives them of the free labor of government employees who work on campaigns in their free time. Also, HUD owns many unoccupied properties that can be sold off or otherwise returned to private ownership. Just as every government expansion fuels further expansion, government contractions can fuel future contractions by the same logic.

So, I’m not saying that all the other ABC agencies are sacrosanct or should not be abolished. I’m saying let’s do HUD first. If this current crop of so-called limited government folks can’t abolish HUD, then there’s no need to waste any further time or energy on them.

Let me quickly dispose of the bogus argument that we can’t get rid of HUD because the Senate will not go along and even if they did, Obama would veto the bill. This is the same phony argument that Nancy Pelosi made about why the Democrats could not end the Asian land wars: Bush would veto the bill. The left accepted the lie. The truth is, all spending bills must originate in the House (Art. I, Section 7). All you need to defund an agency like HUD is a tie vote on the budget in the House. In that case, although HUD might still exist in theory, its programs would cease to function.

The New York Times identified five tea party Senate candidates and forty-one tea party House candidates who won or are leading.

Senate

PA- Pat Toomey
KY- Rand Paul
FL- Marco Rubio
WI- Ron Johnson
UT- Mike Lee

House

AR-1 Rick Crawford
AR-2 Tim Griffin
AZ-1 Paul Gosar
AZ-5 David Schweikert
FL-2 Steve Southerland
FL-22 Allen West
FL-24 Sandra Adams
GA-9 Tom Graves
ID-1 Raul Labrador

IL-8 Joe Walsh
IL-10 Robert Dold
IL-11 Adam Kinzinger
IL-14 Randy Hultgren
IL-17 Bobby Schilling
IN-3 Marlin Stutzman
IN-9 Todd Young
LA-3 Jeff Landry
MI-1 Dan Benishek
MI-3 Justin Amash
MO-4 Vicky Hartzler
NC-2 Renee Ellmers
NH-1 Frank Guinta
NV-3 Joe Heck
NY-13 Michael Grimm
NY-20 Christopher Gibson

NY-25 Ann Marie Buerkle
OH-1 Steve Chabot
OH-6 Bill Johnson
OH-15 Steven Stivers
OH-16 Jim Renacci
SC-1 Tim Scott
SC-3 Jeff Duncan
SC-4 Trey Gowdy
SC-5 Mick Mulvaney
TN-4 Scott DesJarlais

TX-17 Bill Flores

TX-27 Blake Farenthold

VA-9 H. Morgan Griffith
WI-7 Sean Duffy
WI-8 Reid Ribble
WV-1 David McKinley

I will send this article to each of the winners. I urge you to do so as well.

I will report back to you in thirty days to see how many are on board. Please keep me posted as well.

This will be lots of fun, one way or another.

Let’s call this the HUD is a DUD campaign.

James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

~ Frédéric Bastiat

Every election is a sort of advance auction sale of stolen goods.

~ H.L. Mencken

The wheels of the gods grind slowly, but they grind exceedingly fine.

~ old English proverb

Note: This essay was prepared in connection with a lecture the author gave at the 20th Anniversary of the Ludwig von Mises Institute [1] in October, 2002. It was published in Political Class Dismissed: Essays Against Politics (2004). The views expressed are the opinions of the author and are based on the facts stated within.

Introduction

When economist Murray Rothbard died in 1995, William F. Buckley, Jr. wrote a mean-spirited u201Cobituary,u201D the upshot of which was that Rothbard died u201Chuffing and puffingu201D with u201Cas many disciples as David Koresh.u201D Buckley’s gift of prophecy is no better than Mr. Koresh’s was. Eight years later, while Buckley yet lives, Buckleyism is fading; while Rothbard is gone, Rothbardianism thrives. Rothbard has prevailed over Buckley in the war for the future as there are thousands of young and bright Rothbardians and Buckley’s influence is waning. Rothbard’s success can be seen today in three websites devoted to his ideas: Mises.org, LewRockwell.com and Antiwar.com. All three are among the most popular political websites in the world, and growing fast. These websites and the Mises Institute’s other publications have been gracious enough to publish over seventy of my articles.

I want to thank Lew Rockwell and Jeffrey Tucker for their heroic efforts in preserving and expanding Misesian and Rothbardian thought, and for allowing me to participate in this celebration. Mises’s fellow Austrian School economist Friedrich Hayek said that in politics, the worst rise to the top. Conversely, the best have risen to the top in anti-politics. I have had the fortune, and sometimes misfortune, of working for, in or with most of the major libertarian institutions, publications and organizations and I can assure you that the Mises Institute is the best of the lot. They are unwilling to abandon or modify their beliefs for monetary, political, or personal advantage. Can a higher compliment be paid to a think tank?

Lew Rockwell suggested the original title for this essay — u201CRothbardian Lawyer Confronts the Stateu201D — and as I pondered that title, I realized that he wanted a personal statement from me, a statement about how Rothbard’s philosophy has influenced me in my life and career. Taking that concept even further, I came to see that the corpus of Rothbardian thought went a long way toward explaining and making sense of many of my own experiences in law and politics, both before and after becoming a libertarian. Finally, and in a broader historical context, I realized that the general outline of the sad recent history of my hometown can only be explained from a Rothbardian framework. After all, I had discovered that framework in my search for an explanation of that sad history.

Having what some psychologists would call a u201Cscientist-typeu201D personality, I suppose I always thought I came by libertarian views through pure cogitation; through the use of u201Cgeometric logic,u201D in Captain Queeg’s [2] famous term. Looking back on it now, though, I can see there was always an emotional component, a personal factor. Yes, the logic was there, but what prepared me to see and accept it while others passed?

A Political Family

I grew up in a political family in Buffalo, New York (Erie County), in an old Irish neighborhood — u201CSouth Buffalou201D — in a highly-politicized city in the most highly politicized state in the union. My mother, Mary (Sullivan-Waldron) Ostrowski, became a nurse, then nursed six children the old-fashioned way: at home. My father, William J. Ostrowski, a product of Buffalo’s Polish East Side, was a state judge from the time I was four years old. In a sense, I am a product of the Buffalo area’s three leading ethnic groups — Polish, Irish and German, as my Polish grandmother grew up in Germany and spoke German and Polish. My maternal grandfather was born in Ballyhaunis, Ireland and came through Ellis Island in 1905.

My father ran campaigns for judgeships when I was 3, 5, 6, 10, 12 and 18. I myself, ran for either public or party office when I was 19, 20, and 21. Additionally, I was an active volunteer in numerous other campaigns starting when I was 16. These included Ramsey Clark’s campaign for Senator in 1974 and Morris Udall’s ill-fated Presidential campaign in 1976.

I was too young to do much for McGovern in 1972, but I do recall putting up a sign for him on the front door. My teenage years were one long political internship. At the same time, my parents followed the national news closely on television. Walter Cronkite was on every day at 6:30 p.m. as I recall. I suppose I started being aware of what Uncle Walter was talking about around 1967 or so — just in time. The sad events of 1968 — the assassinations of King and Kennedy, the riots, the Vietnam War and the election of Nixon — are very clear in my mind. So, from the age of ten or so, I was able to observe local politics up close and personal, and national politics from afar, but with the benefit of often-graphic television coverage.

That is what I was looking at; where was I looking from? I break this down into the personal, the familial, and the geographic. While it is difficult to reconstruct one’s frame of mind 30 years ago, I think it is fair to say I was an idealistic boy, animated by Catholic notions of right and wrong, continually reinforced by my parents at home. At school, I had absorbed the standard idealized version of American history which highlighted the benign purposes of government and the rapacious motives of the robber barons and capitalists. You knew the u201Cgoodu201D presidents by the size of the wars they fought.

I had also absorbed the Democratic milieu that surrounded me. To my knowledge, there had never been a Republican in my family on either the Polish or Irish side. So early on, I had a left-liberal perspective with, however, a strong libertarian streak. Since Richard Nixon was president for my early teenage years, I developed a strong distaste for the Republican Party that I have never shaken. To me, the Republican Party meant two bad things: the Vietnam War and Watergate. Nothing that has happened in the last 30 years (or months) has caused me to change my mind. In a larger sense, these two events irrevocably shattered the myth of the noble and benign government I had learned about in school. Rothbard would later write:

Watergate, as politicians have been warning us ever since, destroyed the public’s u2018faith in government’ — and it was high time too. Watergate engineered a radical shift in the deep-seated attitudes of everyone — regardless of their explicit ideology — toward government itself. . . . government itself has been largely desanctified in America. No one trusts politicians or government anymore; all government is viewed with abiding hostility, thus returning us to that state of healthy distrust of government that marked the American public and the American revolutionaries of the eighteenth century. [3]

My perspective was familial as well. My father was a highly respected municipal judge who wished to achieve higher judicial office. I was biased in his favor, of course, but he did have excellent qualifications for the job, being universally respected in the legal community and having a law degree from Georgetown and a rare masters degree in law from George Washington University. His later acceptance into the prestigious American Law Institute confirmed this early belief of mine. [4] Even in those years, his fine reputation was a matter of public record. The Buffalo Courier-Express editorialized in 1973 that u201CJudge Ostrowski continues to generate viable ideas on the improvement of court operations, without the slightest hint of self-interest, partisanship or desire for personal acclaim. . . [he] has consistently given the city’s taxpayers more than they bargained for.u201D [5] However, when it came to higher office, in my father’s way, it seemed, always stood the local Democratic Party political machine. Whence came my first real education in how politics works.

My father was passed over for higher judgeships year after year, a fact which puzzled and pained me and my family. While this was happening, a contest occurred for Chief Judge of the Buffalo City Court. This position was to be filled by the judges themselves, pending election. My father had four votes; the party’s choice had five votes, and another candidate had two votes, with six needed to appoint. Suddenly, the two swing votes switched to the machine candidate. The two swing votes that allowed the machine to keep control of City Court, with its numerous patronage jobs, just happened to get the party’s support for the next two state court vacancies. This was an early lesson in how judicial politics works (badly).

Geographically, though I didn’t realize it until my teenage years, we lived in a once-thriving city that was in the midst of slow but steady decline that continues to this very day. I first became aware of this decline in my high school years when my long public bus trips to and from St. Joe’s brought me into regular contact with the poorer parts of town.

The Political Machine

It didn’t take long for a close observer of Buffalo politics to realize that the real power in government was actually outside the government. Real power, at least in local politics, was held by the county Democratic chairman, affectionately known as the u201CBoss.u201D The Boss was always a lawyer, usually Irish, who often held some well-paying, part-time board position with light duties. The Boss and his troops were responsible for installing the mayor and other public officials. So, on big decisions, machine politicians would take their direction from the Boss. If they weren’t the types to take such direction, they wouldn’t have made it that far in the first place.

In theory, the Boss was democratically elected by county committeemen elected by voters of the same party. In reality, they didn’t call him Boss for nothing. The Boss was essentially an autocrat. Like any autocrat, he had allies and constituencies to please, and sometimes even superiors to answer to (his big money contributors). However, in general and on most matters, he called the shots and everyone else aimed accordingly. They did so willingly because they perceived that, by all members of the political machine working together under the direction of one man, their collective political power would be maximized. That’s why they call it a u201Cmachine.u201D A similar managerial principle allowed Caesar, leading 50,000 well-disciplined troops, to defeat 250,000 Gauls in 52 B.C. at Alesia. In Buffalo, the relatively small but highly disciplined and motivated machine was consistently able to impose its will on the disorganized and demoralized masses.

Why did the troops want the machine’s political power maximized? First, to increase their own pro rata share of that power; second, for money, which is the fruit of political power, and third, for prestige, in the local dialect, u201Cwhack.u201D I could see little evidence that the accomplishment of valuable programs, the passage of beneficent laws and the establishment of justice were prime motivating factors for the Boss and his troops. As political scientist Clarence N. Stone would later explain:

In general, policies that benefited everyone, friend and foe alike, had little attraction to the urban bosses. . . . Their benefits cannot be allocated on the basis of favoritism and don’t generate individual obligations to the machine. [6]

At the time, however, I did not have the intellectual tools to fully understand the political machine. Suffice it to say, I did reach the conclusion that the machine was a cohesive group of people working toward the goal of increasing their own power and wealth at the expense of everyone else in the community. Thus, I had formulated a primitive version of the theory of the nation-state — developed by Franz Oppenheimer, Albert Jay Nock, and Rothbard [7] — as the organization of the political (coercive) means of acquiring wealth:

There are two methods, or means, and only two, whereby man’s needs and desires can be satisfied. One is the production and exchange of wealth; this is the economic means. The other is the uncompensated appropriation of wealth produced by others; this is the political means. . . . The State is the organization of the political means. [8]

Perhaps the clearest example of the machine’s brazen economic motivation was the no-show job scandal that hit Buffalo in the early 1970′s. I came to know the details well because a family friend was charged in the scandal and I attended his trial. (He was acquitted.) The scheme worked this way: a few higher-ups in City Hall would give people jobs and tell them they don’t have to show up, merely kick-back half their salaries to the ringleaders. They called it the u201C50-50 Club.u201D

A year or two later, there was the Model Cities scandal. The scam was similar, although this time the thieves didn’t bother to cut in the u201Cworkers.u201D They put 62 non-existent employees on the payroll and pocketed the funds. [9] These scandals involved only renegade elements of the machine and were notable for their illegality. [10] Most of the self-seeking activities of the machine were perfectly legal. The no-show job scandal, however, is a useful symbol which captures the essence of machine politics: get as much money as possible for the least amount of productive work.

What is the u201Cworku201D involved in being a member of the machine? There is one main requirement: absolute loyalty to the Boss. If you possess that sole u201Cquality,u201D the Boss will guarantee you a light-duty job or other goodies. While loyalty is an essential and venerable human virtue, absolute loyalty to a political Boss is a vice. The Boss is the head of an organization whose primary purpose is to seek power over others and control over their money. On a more technical level, the Boss needs loyalty because the Boss often has to do ruthless things, support questionable characters for jobs and offices, and support policies injurious to the public welfare. He can’t very well have a bunch of altar boys hanging around him. That being the case, it must be true that, in general, the Boss’s most loyal troops tend to be ruthless and amoral characters. They would also tend to be those who were most lacking in marketable job skills. The least skilled have the most to gain from selling their souls to a political boss. [11]

Political patronage is defended on the ground that the democratic process needs troops to run campaigns, gather petition signatures, and support candidates. It would be difficult or impossible to perform these functions without providing an economic incentive to campaign workers. This theory is a feeble rationale for legalized graft. We would be better off if those whose primary motive is personal gain stayed out of politics altogether. Presently, those parties and candidates who are already in power have a huge advantage in the electoral process, since they have access to the labor and contributions from their own employees anxious to keep their jobs. Moreover, the patronage system reveals the intellectual and moral bankruptcy of electoral politics today. If the prime actors in the process are those primarily motivated by their own economic welfare, as opposed to the general good, their nefarious goals will tend to be achieved at the expense of more public-spirited citizens who will always be outnumbered and outspent. And so it goes.

This model of self-serving machine politics did not exactly satisfy the idealistic young boy. I believed there must be something better than that. I struggled to develop an alternative philosophy of politics, though I was too intellectually immature to accomplish that goal. The best I was able to conjure was that governmental action must be undertaken for the good of all and not for the benefit of small numbers of people at the expense of the rest. Unfortunately, since I did not have a good grasp of economics, I was unable to define what policies were in fact in the general interest. Also, my theory was nave, since it failed to take account of the problems identified by the Public Choice School — rational ignorance and rational apathy. [12]

As explained in more detail below, the average citizen has little incentive to become politically active (rational apathy) or even knowledgeable about politics (rational ignorance). Therefore, politics tends to be dominated by those relative few who have a large and direct stake in the outcome of elections. I had mistakenly assumed that private citizens would become active in politics for the sole purpose of achieving governmental action that would benefit all of society, without any personal reward. Only much later did I learn that such republican virtue, ranged against a system which offered a seemingly endless supply of economic goodies to the highest bidder in exchange for loyalty to the machine, would almost always be overwhelmed by special interest forces and incentives.

Reform Politics

In any event, armed with my nave view that citizen reformers, motivated solely by republican civic virtue, could take on and defeat the machine, I spent several years supporting independent, reform-minded candidates. These efforts were predictably unsuccessful. It is very difficult to defeat incumbents who use tax money to buy votes and who have access to their employees and contractors to supply campaign funds and volunteers.

One of the few victories came in 1976. My father risked his political life — the local paper called it u201Cpolitical suicideu201D — and outsmarted the Democratic machine by running as a Republican and Conservative. Benefiting from tremendous support from Buffalo’s large Polish-American population, which always felt snubbed by the machine, [13] he won by 20,000 votes. Lacking big-money contributors, he ran a clever grassroots campaign, heavy on leg-work and community support. He won while spending the lowest sum in memory for a campaign in the large Eighth Judicial District encompassing eight counties.

My father didn’t know it at the time, but we also had a u201Cdirty tricks squad.u201D Besides leaking information to the press about prominent Democrats supporting my father, the kids and friends would get together and crash Democratic rallies and hand out placards for my father. At a rally attended by then-candidate for Vice-President, Walter Mondale, fists nearly flew. Another incident stands out in my mind. I got wind that Daniel Patrick Moynihan was going to campaign for the U. S. Senate at a local shopping plaza in a heavily Democratic district. Naturally, I was there when he arrived, handing out my father’s literature. If the shoppers thought I was with Moynihan, who was I to disabuse them of that notion? Caught off guard, Moynihan’s advance men looked on with displeasure but could do nothing as I was breaking no law. One of the advance men, then a mid-level operative for the machine, has gone on to fame and fortune: Tim Russert, host of u201CMeet the Press.u201D

The next year, I was part of a campaign that at the time was designed to fail, but which nevertheless illustrates my thesis here. In New York, candidates for state judge are selected by a cumbersome convention process instead of a primary election. In theory, anyone could run for delegate; however, in order to be able to select a judge, you would have to run over a hundred candidates in a multi-county area. The machine routinely did this, using well-known public officials who would be difficult to defeat.

In 1977, Timothy Lovallo, a law student, and I, a college student, took on the challenge. Our intent was to show how absurd the system was and urge an open primary election in its place. We recruited over one hundred delegate candidates, mostly private citizens, gathered thousands of signatures, and achieved ballot status. At the primary election, however, only three of us were elected, the three who happened to have prominent political names. At these conventions, the party hacks are told for whom to vote, and they do so, often mispronouncing the unfamiliar names of the candidates written on a slip given to them at the meeting. A recent series in the Buffalo News made public what had previously been an open secret: state judgeships usually go to those who contribute the most money to the local party chairman. So it is that state trial judges are selected in New York. It’s enough to give you butterflies in your stomach.

The 1977 state judicial convention was yet another educational experience for me. I had no candidate to nominate until the morning of the convention when a prominent trial lawyer and former Bar Association president did me a huge favor and allowed me to put his name into nomination. One hack made up the lie that I had not asked my candidate’s permission in advance, but only after they had invited my candidate to speak. My candidate was the class of the field, however, he got only three votes. Our stunt in crashing the party’s party did, however, succeed in stealing the news coverage away from the three machine candidates. Miffed, another hack spread yet another lie — that I had called my own candidate an u201C[expletive deleted].u201D Why would I do that to a man who had just done me a big favor? What struck me about the convention was how two public officials told two different lies about me in retaliation for challenging the machine’s natural right to pick state judges.

In 1978, I myself ran for State Assemblyman in the Democratic primary against a well-known and entrenched incumbent. I was the ripe old age of 20 and a college sophomore. It was not a quixotic effort, however. We meant to win, knock off an important soldier of the machine, and thereby weaken the Boss. The strategy was based on three factors: an expected strong ethnic vote in the Polish-American parts of the district; my family’s name-recognition based on my father’s status as a judge; and the fact that my family lived in the Irish portion of the district and I, being half-Irish, expected to do well there.

Nevertheless, the machine had all the other advantages: money, troops, and people on the payroll who always vote in primaries. And yes, they had people I had never met, and who knew nothing about me, bad-mouthing me behind my back. The incumbent won, 54—46 percent, with his entire edge coming from one small older Irish neighborhood with lots of people on the machine’s payroll. Even with all my unusual advantages, the aforementioned plus a small but energetic cadre of supporters, my reform campaign was doomed. Several other independent efforts that year spent far more money and received even fewer votes. As one analyst writes, u201Cissue-oriented u2018amateurs’ seldom could muster sufficient strengthu201D in primary elections against machine candidates. [14]

[Years later, I would learn yet another lesson about political retaliation. I was a lawyer in New York City and had opened my own office in the shadow of the World Trade Center hoping to get a start as a criminal defense lawyer. Essential to this was to get on the assigned counsel panel for a few years. I noticed that a member of the selection committee was a State Assemblyman from New York City who was a friend of the man I had run against seven years earlier. In 1978, this fellow had the gall to come all the way from New York City and show up at my next-door neighbor's house in Buffalo to campaign against me. A real nutcase. When I saw his name on the committee's letterhead, though, I laughed it off. No way would he hold it against me years later. No way would the other members let him. For not the last time in my career, I had underestimated the malice of the machine mentality.

The nutcase was not present for my interview (intentionally?). I was informed at the meeting that I had been approved. The next morning, however, I received a call revoking the approval. In the course of a few hours, the committee was now thinking I had lied about leaving a prestigious New York law firm on my own volition. I didn't know and they wouldn't tell me who told that lie about me, but I had a good guess. Even when that lie was refuted, another false allegation was made against me. This time, I knew who my enemy was — the clown who had campaigned against me in 1978. He apparently showed up at the meeting after I left and convinced the committee to revoke my approval. Believe it or not, he accused me of (pre-law school) misconduct in the Assembly campaign years earlier. I was never told what the alleged misconduct was. (There wasn't any.) I was merely told, after many months of delay, that the committee was not able to substantiate the charges and I was finally let on the panel. Nevertheless, the delay caused me no end of problems getting my law practice up and running.

After this controversy ended, I was advised by several politically-savvy lawyers to, in effect, grin and bear it; don't make waves; that's the way the world is and so on. I followed that advice back then. I now realize that was a mistake. I would not make the same mistake twice. This essay is proof of that. I now believe that if you tolerate an injustice done to you, you become a co-conspirator in that same injustice and you allow the miscreants the liberty to practice their arts on other victims in the future. I now follow Virgil's dictum, adopted by Ludwig von Mises as his personal motto: Tu ne cede malis sed contra audentior ito. (u201CDo not give in to evil but proceed ever more boldly against it.u201D)]

On the rare occasions when independent candidates were elected, the system did not change. They usually quickly made peace with the machine or replaced it with their own, engaging in the same old self-serving patronage and special interest politics. What was lacking in these reformers, including my pre-Rothbardian self, was a cogent theory of politics that explained why reform was futile and why radical change is needed. So long as I was locked into a left-liberal mindset, I could never fully grasp the nature of Buffalo’s political system or imagine any alternative to it. I did not realize that it is the liberal welfare state itself that gives rise to corrupt political machines.

The Contradiction

I grew to loathe the machine, yes because it had unfairly thwarted my father’s career, but more importantly because it was just plain bad. So there I was, a liberal who wanted to fight machine politics. This was an insoluble contradiction.

Liberalism is the political philosophy of virtually all politicians in Buffalo of either party. There are Republican and u201Cconservativeu201D officials and politicians in Buffalo; however, fundamentally, all are economic liberals. All believe in the basic philosophy of liberalism which gives the state a large amount of control over the economy so as to, according to the fantasy, serve the cause of equality, ease the alleged hardships of laissez-faire, and watch over the u201Cgreedyu201D capitalists to insure they don’t exploit the people or foist overpriced or shoddy goods and services upon them. (Who will guard the guardians, though?)

To my knowledge, there is not a single Republican politician in Erie County who would support ending corporate welfare, the minimum wage, the u201CWar on Drugs,u201D or special legal privileges for unions. The party that claims to support private property would allow the police to break into our homes in the middle of the night to seize drugs — private property; then would allow the courts to forfeit those homes for containing the traces of a smoked joint. Ah, the Party of Lincoln, Nixon and Rockefeller. There is no Republican official or politician in Buffalo who believes in a libertarian or Jeffersonian approach to government based on private property, individual rights and decentralization. On the contrary, the current fad among local politicians is centralization and regionalism.

The political machine, whether Democratic or Republican, is an outgrowth of liberalism. It seeks to manage the distribution of the economic goods controlled by the state to enhance its own power. The amoral nature of the machine’s distribution process mirrors the immoral nature of liberalism’s initial seizure of wealth and power from society and the market. Once property has been seized from its rightful, Lockean owner [15] (the person who first finds, possesses or produces wealth or property), it is, from the point of view of morals, up for grabs. The most ruthless people, usually part of a political machine, grab the fastest and hardest. They have no shame.

Thus, liberalism begets the machine. The machine then expands and strengthens the liberal state, which in turn expands and strengthens the machine. But of course. Liberalism is the notion that spending other people’s money is heroic; patronage politics is the practical application of the general principle. The machine politician pulls the trigger of the redistributionist gun loaded by some dead intellectual or philosopher who no doubt would disdain the hack politicians he created. This is why one cannot be a u201Creform Democratu201D or u201Creform liberalu201D in any meaningful sense. This is why u201Creform Democrats,u201D like former New York City Mayor Ed Koch, metamorphose into machine Democrats.

Contrary to the belief of some, the rise of the welfare state did not render the machine obsolete. Rather, as the New York Times concluded in 1968, u201Cpatronage has vastly expanded in the last several decades because of the tremendous growth of government, spiraling government spending, and the expansion of government’s discretionary powers to regulate, control and supervise private industry.u201D [16] Professor Wolfinger, after describing the numerous ways a modern welfare/regulatory state can confer benefits on the connected, concludes that u201Cthere is no necessary connection, then, between expanded public services and a decline in the advantages of political help on the number of people who want to use it.u201D [17] He emphasizes that the middle class and wealthy businessmen are as likely to seek favors from the machine as the poor and downtrodden were before the rise of the welfare state.

u201CReformeru201D John Lindsay added a huge number of patronage jobs after defeating the Democratic machine for Mayor of New York City in 1965. Reform turns old machines into new machines, in the words of Theodore Lowi. [18] As Professor Stone observes, u201Creformers . . . were often quite willing to use patronage to further their programmatic goals, as well as their personal aims.u201D [19] As I would learn shortly, the only route to stamping out ruthless, corrupt and self-serving machine politics is radical libertarianism. Sometimes the truth is so simple that we miss it. Eliminate the economic goodies the state can dispense and you end patronage politics. There is no other way.

After I wrote these two paragraphs, evidence that confirms my thesis fell into my lap. I picked up the local left-wing alternative paper, Alt Press, Sept. 19, 2002. There I found numerous criticisms of the incumbent County Executive for filling government jobs not with the public good in mind, but solely to enhance the power of his political machine. A later column in the same paper accused the Mayor of Buffalo of using HUD funds for political patronage (February 27, 2003). The analysis of the article is correct as far as it goes:

Despite the fact that Buffalo received [over one billion dollars]. . . there is little to show for it. [HUD money] has long been considered fuel for political patronage jobs. . . . The City of Buffalo topped the list of local municipalities when it came to the percentage of [HUD money — 51 percent] tied up by u2018soft costs’ [patronage]. . .

When we look at the agencies in question, however, we see some of the sacred cows of the left: the county hospital, the local community college and public housing. Since, at the behest of the left, such services as medical care, education and low-income housing have been taken out of the market and u201Cprotectedu201D from the harsh calculus of profit and loss and the rigors of competition, the political bosses are free to dump their soldiers there without fear of the consequences. They will in no real sense be held responsible for these consequences precisely because they hold power over the victims, the taxpayers. They have the power to force the taxpayers to pay for public hospitals and schools, regardless of how poorly they perform. Liberalism begets the machine. Be careful what you wish for; you just might get it. As Mencken said, u201CDemocracy is the theory that the common people know what they want and deserve to get it good and hard.u201D

Let me spell this point out as directly as I can for the benefit of my liberal friends. Liberals support public hospitals and such because they believe that private persons acting in the free market are not responsible enough to provide for their own medical care and therefore they should not have control over or responsibility for medical care. Their funds have to be taxed, taken from them and removed from their control. It is this very transfer of control over funds from private persons to the government that is the cause of the misuse of those funds they frequently complain about. Since they have ended our control over these funds, we can no longer prevent their use for purposes and projects we oppose, for example, enhancing the machine’s power. In sum, liberals have created the very problems they now decry. If the taxpayers’ funds now earmarked for public hospitals were returned to the taxpayers’ pockets, it would be metaphysically impossible for politicians to misuse them.

Now, my liberal friends may well reply that citizens can still exercise control over spending through the democratic process. To quote self-help guru Dr. Phil, u201CHow is that working for you?u201D I believed the same when I was 16 years old. As they used to shout at us at high school football practice: u201CWAKE UP!u201D Since the citizens of Buffalo have somehow been failing for over 40 years to rein in patronage and machine politics and cut taxes, isn’t it time to ponder whether the fault lies not with individual citizens, but with the system you created?

This is why it doesn’t work: Let’s take a guy who makes $85,000 as the assistant to the president at the local community college. If he loses his job, he is out of a cushy, high-paying job. To keep that job, he is certainly willing to spend up to $5,000 in political contributions and spend many hours pounding the pavement for candidates who will ensure his continued employment. Now, let’s take a citizen working at the local supermarket for $20,000. He pays about $750 in county taxes. Let’s say he thinks the assistant’s job should be eliminated. To attempt to do so, he would have to spend about fifty hours organizing, lobbying, writing letters and so on. Assuming that his leisure time is worth his hourly wage, the economic value of this effort is 50 hrs. x $10 = $500.

How much will he save by having this job cut? Let’s assume there are 200,000 taxpayers in the county and that the total cost of the $85,000 position (with pension, benefits and office, etc.) is $120,000. That amounts to a savings of $1.66 per taxpayer. Thus, our citizen must spend $500 of resources (time) to save $1.66. Further, he has no guarantee of success. In fact, given that the fellow with the job will expend far greater resources opposing his effort, the reformer is highly unlikely to succeed. Let’s say he has one chance in ten. Thus, we can calculate the economic value of his effort as 0.166 cents — seventeen cents. Unless he is crazy, the citizen will not undertake this effort and the bureaucrat will keep his job and the machine will go on and on and on . . . . [20]

The very same dynamics governed the rise of Big Government in the first place. Let’s assume that there is no position of assistant to the budget director. One who seeks to create and fill that position faces virtually the same economic incentive to lobby to create that job as he does to maintain that job. The citizen’s incentive to stop the job from being created is identical to his incentive to eliminate the job after the fact. Unless there is an ironclad understanding of the strict limits of proper government, the natural dynamics of the democratic process will continually expand the state in socially harmful ways.

Thus it is that small governments tend to become Big Governments and Big Governments tend to become ever larger. They tend to grow unimpeded until they are destroyed either by military defeat or internal revolution. Such revolutions tend to occur only after government has grown so large that it begins to destroy the society and economy that support it, thus loosening the inhibitions of the people and increasing their inclination toward drastic measures. Though this process has occurred in communist states, in mixed economies such as ours, paradoxically, the market remnant of the economy is usually able to produce wealth at a rate sufficient to counteract the impoverishing impact of government growth. Such is Buffalo. The economy is a mess, but not so much that people will hit the streets:

While governments, political parties, and labor unions are sabotaging all business operations, the spirit of enterprise still succeeds in increasing the quantity and improving the quality of products and in rendering them more easily accessible to the consumers. [21]

Discovering Liberty

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do.

~ Ralph Waldo Emerson

To grasp these truths, I had to escape from my economic liberalism. Alas, I was not destined to remain a George McGovern/Ramsey Clark liberal forever. The beginnings of a better approach to politics had been there. I nearly worshipped Thomas Jefferson and his tersely-stated libertarian political philosophy as expressed in the second paragraph of the Declaration of Independence. From watching American boys die on television every night, I came to abhor war, u201Cthe health of the state.u201D My father had also spoken out against the Vietnam War in a speech in 1970 before my brother Mike’s high school graduating class. It was the commencement address at St. Joseph’s Collegiate Institute, from which he had graduated early in 1943 to enlist in the Army and fight crack German troops in pitched battles in the Vosges Mountains. [22]

I would come to hate war in all its permutations: Cold War, hot war, Civil War, drug war, poverty war. u201CWaru201D is the term politicians slap onto all their harebrained schemes to improve the world by use of massive aggressive force. War is a bore, but the bored always want more.

To quote Rothbard:

It is in war that the State really comes into its own: swelling in power, in number, in pride, in absolute dominion over the economy and the society. Society becomes a herd, seeking to kill its alleged enemies, rooting out and suppressing all dissent from the official war effort, happily betraying truth for the supposed public interest. Society becomes an armed camp, with the values and the morale — as Albert Jay Nock once phrased it — of an u2018army on the march.’

Also, from my father, I developed a strong civil libertarian and anti-drug war position. He took the Fourth Amendment very seriously, and once caused a huff by refusing to be searched at Attica Prison where he went to hold court (for the convenience of the prison). What I lacked was a comprehensive political philosophy. More specifically, I lacked an understanding of economics, which I suppose is true of all left-liberals. I have never met a leftist or liberal who evinced real interest in or a thorough understanding of economics, the science of human action. Otherwise, they would cease to be left-liberals.

In college, I had read Mill’s On Liberty and Friedman’s Capitalism and Freedom and found much of interest in them, but they did not inspire. There was something missing. Then I stumbled on Ayn Rand’s essays which knocked the liberal wind right out of me, at least on economic issues. I had never heard of Ludwig von Mises before scanning Rand’s bibliographies. But it was in the bibliography of Robert Nozick’s Anarchy, State, and Utopia that I ran across another figure I had never heard of but would later learn was the founder of the modern libertarian movement: Murray Rothbard.

I started reading Rothbard and other libertarian writers in 1979 and had the opportunity to hear Rothbard lecture at the 1980 Cato Institute Summer Conference. Other lecturers included Buffalo historian Ralph Raico and economist Thomas Sowell. I had the privilege of attending Rothbard’s ten-week seminar on the history of economic thought in 1984. I can only hint at Rothbard’s genius in this essay. Consider this prediction he made in 1956, in the context of expressing his opposition to the dangerous and expensive Cold War and William F. Buckley’s endorsement of u201CBig Government for the durationu201D and a u201Ctotalitarian bureaucracyu201D to fight communism. Rothbard wrote to Buckley:

Time is on our side and we will realize that we need not dig in for a long and bloody battle to the death with an enemy [the Soviet Union] that is even now withering from within. [23]

In 1983, I invited Rothbard to speak at Brooklyn Law School. His topic was a libertarian view of the Reagan Administration. He stunned the liberals and leftists in the audience who thought libertarians were u201Cto the rightu201D of Reagan. Breaking down policy into three areas: civil liberties, foreign affairs and domestic issues, Rothbard proceeded to argue that, contrary to popular opinion, Reagan, far from getting the government off the backs of the American people, was actually increasing its size and power. While criticizing Reagan for not cutting taxes and regulations nearly enough on the domestic front — no surprise there — he shocked the audience by attacking Reagan u201Cfrom the leftu201D on civil liberties, the war on drugs and foreign intervention.

Of course, it was not Rothbard’s views that shifted from u201Cleftu201D to u201Crightu201D on the misleading political spectrum; [24] rather, it was the audience’s confused categorization of those views that had shifted. Most people find it hard to place libertarians on the political spectrum. I have always entertained a bit of a conspiratorial view that it is the purpose of the spectrum to render libertarians non-existent or, even worse, u201Cto the right of Attila.u201D This is absurd, of course, as libertarians were the original left! [25] They were the original revolutionaries. They continued to be considered u201Cto the left,u201D opposing World War I and conscription. Only when FDR’s New Deal came along did anti-New Deal libertarians such as H. L. Mencken come to be seen as u201Crightist.u201D Since FDR’s program was modeled on the rightist Mussolini, [26] the categorization of libertarians as rightists seems a bit odd. Finally, if we are rightists, why do so many of us agree with leftists Gore Vidal and Noam Chomsky on post-9/11 foreign policy matters?

Rothbard is the latest admitee to the pantheon of libertarian immortals joining: Locke, Trenchard and Gordon, Jefferson, Bastiat, Spooner, Thoreau, Mencken, Nock, Rand, Mises and Hayek. Standing on the shoulders of these giants, Rothbard became the most consistent, most passionate, most scholarly, most dedicated, most radical, most single-minded defender of individual liberty and the free market in history. I had always been an individualist in politics. I had always believed that the individual had strong rights against the state. (How can you be an American and not believe that?) Once Rothbard convinced me that the right to private property is an individual right and the basis for numerous other rights I held dear, my conversion to the libertarian view was complete.

From Rothbard and his colleagues and forbearers, I learned that capitalism (the free market), by protecting private property and freedom of contract, encourages people to use their abilities and resources to produce goods and services that are most likely to be urgently demanded by others. Capitalism, unlike competing systems, does not depend on the quality of its overseers. Capitalism’s overseer is the price system, which, far from being dependent on the will of a small number of politicians, is the mathematical expression of the totality of human knowledge about the value and scarcity of goods, services, and resources. Capitalism allows people with different backgrounds and talents and levels of ability to trade for mutual advantage in accordance with the principles of specialization and the division of labor.

Capitalism does not require central planning; rather, capitalism is what happens naturally and spontaneously when there is no such planning. As seen, for example, in prisoner of war camps where cigarettes became money, markets arise spontaneously from individuals acting to advance their own interests. Markets are natural; they just happen. The political formula for establishing a capitalist system is: don’t just do something, stand there. Competing systems require finely-tuned planning; capitalism doesn’t need the right plan; it doesn’t need a plan at all. Capitalism is a complex and harmonious melding of all our individual plans. Capitalism requires no change in human nature or the natural tendency of people to act to further the welfare of themselves and their families.

A beautiful, recent example of what I am talking about comes from Iraq. In the interstices between the death of the old regime and the U.S. military dictatorship attempting to consolidate power, guess what happened. In the absence of a state, spontaneous order broke out as Iraqi businessmen moved fast to provide needed goods and services and rebuild infrastructure. And all this without a central plan. Astonishing. Not only did they not need the American corporatocracy to help out; it turned out that the Pentagon-run Office of Reconstruction and Humanitarian Assistance was their biggest obstacle, preventing the businessmen from starting vital new ventures. The good news: the U. S. bureaucrats didn’t have time yet to reinstate the old tariffs. u201CPrices are better because there’s no government now,’ [a merchant] said, expressing no regrets.u201D [27]

As this example illustrates, capitalism is a system that arises naturally and spontaneously; is governed by the price system, not by politicians or dictators; encourages people to be productive and cooperate with others; and works well with people as they are. No re-education camps are required. As the above example also shows, governments are good at confiscating and obstructing; business is good at facilitating and producing. Unlike the socialist or liberal state, which tends to grow in spite of poor performance, the market is self-correcting. Deficiencies in one market enterprise can be remedied by profit-seeking entrepreneurs offering goods and services that remedy or overcome such deficiencies.

In contrast, socialism acts, as it must, through the coercive apparatus of the state. Anarchic socialism is an oxymoron. (Sorry Noam Chomsky.) Since the socialist state uses force to compel people to participate in its economic machinations, such persons are necessarily abused and exploited. Otherwise, why would they need to be compelled? The wealthiest business cannot force a bum to spend ten cents on its products, but the socialist state can extract millions from the wealthiest business without breaking a sweat.

While capitalist decisions are made by individuals and firms that know more about their particular circumstances than anyone else could possibly know, socialist planners know little or nothing about the persons and institutions they deal with and thus are forced to make and enforce arbitrary general rules that apply the same to different people and different circumstances, regardless of the absurd or unjust consequences.

Socialism does not work because, in the words of Frédéric Bastiat, people are not clay. They always react and respond to the state’s use of power against them (or for them) in ways that result in unintended and negative consequences from the state’s point of view. This is called u201Cblowbacku201D in foreign policy matters, however, there is also domestic blowback such as the crime wave unleashed by the u201Cwar on drugsu201D and the Great Society’s destruction of the family structure of the poor.

Instead of allowing the price system to be a vehicle of rational economic planning by individuals and firms, socialism sabotages the price system as much as possible. In its extreme form, socialism would eliminate prices for capital goods — by seizing them — and thereby cause economic annihilation. [28] Even socialism’s less extreme interventions damage the price system. Taxation, inflation, subsidies, occupational licensure, collective bargaining mandates, and so on, distort market prices and cripple their ability to convey accurate information about preferences and scarcities.

The magnitude of socialism’s failure corresponds to the extent it has been tried. Where totalitarian socialism has been tried, for example, in the Soviet Union and Communist China, the result was mass murder, mass starvation and economic chaos. Where democratic socialism has been tried, for example, Great Britain, it managed to turn its economy from world class to second-rate. The mixed economy of the United States, not being quite as socialist as that of Britain and Western Europe, has not damaged our economy quite so much. Within the United States, those locales with the largest governmental intrusion into the market have generally experienced the lowest growth. Buffalo and Erie County, having one of the most heavily taxed and regulated economies in the United States, have been losing jobs and people and hope for decades.

The undeniable popularity and political success of various forms of socialism, from liberalism to communism to fascism, are in part the result of various fallacies and misconceptions and ignorance, often willful. More important, however, are the emotional factors favoring socialism: the desire to spend other people’s money, envy, the futile desire to be rid of economic worries, [29] and finally, the childish desire for utopia or for a secular religion of the state that purports to solve all of life’s problems. These desires, however, as demonstrated above, are at war with logic and reality. That is why socialism always fails in practice.

Let’s look in more detail at why socialism, or liberalism as we call it in the United States, is so popular. The reasons are not complicated. First, socialism allows people to spend other people’s money. Let’s avoid the word u201Cstealu201D other people’s money, because only libertarians see it that way. Nevertheless, however socialists justify this spending, even they realize they are taking other people’s money. Yes, I know some socialists deny the very concept of private ownership. But even they realize that socialism takes money and property that is possessed by some and transfers possession to others so they can spend or use it.

Reason No. 1: Socialism allows people to spend other people’s money without feeling guilty about it.

Second, there is a related but distinct craving that animates socialism, as noted by many commentators. Envy is a strong emotion that has a powerful impact on society and politics. Envy is u201Ca painful or resentful awareness of an advantage enjoyed by another joined with a desire to possess the same advantage.u201D (Webster’s New Collegiate Dictionary). Because no one admits to acting on the basis of envy, the term u201Cequalityu201D — robbed of its original and legitimate meaning, equality of liberty — is used instead. Socialism is the perfect political expression of envious people as it purports to rein in u201Cgreedyu201D and wealthy capitalists and usher in social and economic equality. When socialists and liberals want to steal people’s money, they call the victims u201Cgreedy.u201D

Reason No. 2:Socialism satisfies the deeply-felt and widely-held emotion of envy.

Third, free market capitalism emphasizes the individual’s responsibility for his own economic welfare. Socialism professes to place this responsibility outside the individual and with the state. Many people are happy to be rid of this burden and glad to be able to blame others for their problems. Unlike Reasons No. 1 and No. 2, this reason for the popularity of socialism is one trumpeted by its proponents. They do not see the obvious downside of the structural reduction of individual economic responsibility: laziness, profligacy, passivity, and worst of all: boredom! Life in the advanced welfare state is a big bore. Check your brain at the door; pick up your check on the way out.

Reason No. 3:Socialism purports to relieve people of the burden of worrying about their economic well-being.

Finally, in a secular age, socialism acts as a substitute for religion. Traditionally, religion would offer solace to people facing the numerous traumas of life. Now, for millions of people, socialism plays that role. u201CFor who would bear [Hamlet's] whips and scorns of time, the oppressor’s wrong, the proud man’s contumely, the pangs of despised love, the law’s delay, the insolence of office and the spurns that patient merit of the unworthy takes, when heu201D could overcome all these problems with socialism?

Utopian socialism — all socialism is utopian — purports to offer a solution to virtually all human problems. In contrast, the claims of capitalism are seen as too modest, and hard work is required as well. There is no need to quote a Marxist on the all-encompassing promises of socialism. Lyndon Johnson will do fine. In an Orwellian speech given on May 22, 1964, President Johnson promised that his Great Society would u201Cpursue the happiness of our people,u201D conquer u201Cboredom and restlessness,u201D and satisfy the u201Cdesire for beautyu201D and the u201Chunger for community.u201D All this and beat the Viet Cong, too. Amazing!

Reason No. 4:Socialism is a secular substitute for religion and offers people (false) solace against the traumas of this life.

These are some of the main reasons why socialism, in spite of its spectacular failure, remains so popular, even in a society such as ours whose fabulous wealth is the result of the shrinking capitalist remnants of the economy.

Killing the Goose

Now, with the benefit of libertarian theory and half a lifetime’s experience with local politics, let me return to the subject of how the local political machine works and with what consequences for the community.

The discussion that follows pertains specifically to Buffalo but is based on analytical tools of general applicability. The analysis therefore could likely be applied to other urban political machines, particularly those in the Northeast u201CRust Belt.u201D The Northeast political scene does differ from other locales because, as Mancur Olson [30] has suggested, the older a regime, the more corrupt it will be. New York State has existed in its present form for well over 200 years. Buffalo has existed for over 170 years. The special interests have had all that time to get their clutches onto the mechanisms of power and advantage. In contrast, the regimes in the post-bellum South and in the West are newer and therefore the interest groups have had less time to do their dirty work. In that sense, this analysis of Buffalo politics offers these newer polities a preview of coming attractions.

Once the machine installs its choices into public offices, it becomes those officials’ chief mandate to expand the power of the machine by expanding government. u201CControl of city and state government [provides the machine] with a formidable array of resources that, by law, custom and public acceptance, could be exploited for money and labor.u201D [31] Since the machine controls the government, the more money and jobs and contracts the government can dole out, the more powerful the machine becomes. Thus it was that, year after year, local government in Buffalo and Erie County tended to grow. This came, of course, at the cost of higher taxes and more extensive regulation of the private economy. By u201Cregulation,u201D I mean the prohibition of peaceful activities which have harmed no one or the compulsion of behavior the non-performance of which would harm no one. Essentially, regulations involve the confiscation of valuable economic resources in non-monetary forms: time, labor, mental energy, and property. A regulation is a non-monetary tax.

Higher taxes and increased confiscation of wealth by regulations reduced the amount of capital available to invest in private enterprise. Private economic activity diminished. Entrepreneurs were driven away. Young, ambitious and well-educated people fled to states with freer and therefore more vibrant economies. All around the country, ex-Buffalonian clubs thrive. There are so many ex-Buffalonians living in Charlotte, North Carolina that they meet at bars to watch the Buffalo Bills games.

The most critical factor in the success of an economy is the amount of capital invested in productive enterprises. Other than working harder, longer, or smarter, the only thing that can increase wealth is capital investment that improves the productivity of labor. The state cannot increase capital investment. Any capital that the state provides to private or public enterprises can only be derived from the prior coercive seizure of capital from a productive private entity or person. Nor is this transfer a zero-sum game, since capital is transferred from a productive private entity which acquired that capital by satisfying the preferences of customers, to another entity which has not met that test but a different one: political pull. After this coercive transfer, there will be much less capital.

Further, in an economy where capital is seized from some and given to others, the producers of capital will tend to have a lower incentive to produce it in the future, and the recipients of the largesse will also have a lower incentive to produce capital in the future. A policy that reduces the incentive of all economic actors to produce wealth is insane, unless, of course, the policymakers are lining their pockets at the expense of the public at large. (They are.)

With respect to the other factor in the wealth equation, human capital, the analysis is the same. Human capital is the sum total of all useful economic skills a person can have. The state can only reduce, not increase, human capital. Investment in human capital thrives in a society in which people are free to live their lives as they choose and free to dispose of their property as they choose. Just as property owners have the maximum incentive to invest in their property only when they wholly own its capital value, we as individuals only have the maximum incentive to invest in ourselves when we wholly own ourselves.

An important aspect of self-ownership is ownership of our income-earning potential. Since the state in these times takes a large portion of our income, extra-large in Buffalo, this necessarily causes a reduction in the incentive to increase or improve our personal economic productivity. Similarly, the recipients of government subsidies also will have a lessened incentive to increase their human capital. Why should they work hard to improve themselves when they can benefit from the hard work of others? Thus, just as the state reduces the incentive of all to invest in economic capital, it reduces the incentive of all to invest in human capital. [32] To illustrate this theory, consider that under laissez-faire the inner city was a place where people were busy trying to improve their lives; it was bustling with hope. The inner city today is a place of passivity and despair.

Virtually all public policies predominant in Buffalo in the last 40 years destroyed or reduced the amount of financial, physical and human capital invested in the private economy: high taxes, intrusive regulations, state-created monopolies (education, medicine, and transportation), special legal privileges for unions, and the seizure of private property through eminent domain. In a modern economy, capital is mobile and flows to where it can make the greatest profit. Buffalo is not that place. Buffalo, like other Northeast Rust Belt cities, is not the place where new capital will be invested. Buffalo is the place where old capital, fully depreciated, will be abandoned. That is why people and businesses have been fleeing for over 40 years. When I read, after writing the first draft of this essay, that Buffalo ranked last out of 50 cities in entrepreneurship, I was not even slightly surprised. [33]

Ironically, these dire consequences actually strengthened corrupt local political elites. First, independent-minded persons of means, the political machine’s natural enemy, are driven away. This leaves few potential opponents of the old regime. Many of the businessmen who remain are bought off with grants, contracts, special tax breaks, [34] and regulatory and prosecutorial leniency. VIPs are rarely the targets of law enforcement agencies in Buffalo. Second, with the decline of the economy, the goodies offered by politics are seen as more attractive. In a town where high-paying private sector jobs are scarce, a high-paying sinecure becomes a very valuable commodity. Competition for these jobs is fierce, thus providing the political machine with many fresh troops to do battle with the ever-diminishing remnant calling for change. It is no contest.

Thus it is that even though Buffalo has been in a state of precipitous and continuous decline for over 40 years, and the causes of that decline are apparent, virtually nothing is being done about it. Nor is anything likely to be done about it in the near future. Unless drastic changes are made now, the Detroitization of Buffalo will continue. The free market has sent the people of Buffalo all the messages and signals they could possibly ask for about the need to change the way they do things. For example, legions of parents have waved goodbye to their children at the airport as they moved away forever to North Carolina, Texas or Tennessee. Unfortunately, the clumsy political technology of democracy is unable to provide the frustrated populace with a viable alternative to the rapacious political elite who ran Buffalo into the ground in the first place and are still in charge. Is this why Jefferson suggested a revolution every 20 years or so? I have often thought there is nothing wrong with Buffalo that couldn’t be cured by giving the top 50 political people a one-way ticket out of town.

Bailing Out the Machine

As the Buffalo economy has been killed off by politicians and their allied special interests, the political class has been creative in seeking out other sources of revenue with which to perpetuate themselves while staving off the complete governmental collapse that would bring them down with it. Increasingly, subsidies from Albany and Washington have bailed out the local politicians. Obviously, subsidies flow from economically more successful communities to those that are less successful like Buffalo. Logically, confronted with such differential success, a well-intentioned analyst would find out what worked in one area, then apply that formula to the failed communities. This has not been done because members of the political class will never admit that they are the problem and they need to go away. Instead, they seek to mulct the productive citizens of other locales and bring the money to Buffalo so their feeding frenzy can continue, even after the local economy has been eviscerated. The taxpayers in those other communities have no say in the matter. Their own degenerate politicians are eager to trade their wealth for the votes that the Buffalo political machine can muster in state and local elections. It is still true that as Erie County goes, so goes New York State. Just ask Mario Cuomo.

The Decline of Buffalo

In 1900, Buffalo was one of the leading industrial and commercial cities in the United States and ranked eighth in population. The remains of that splendid era still exist: cultural institutions founded by wealthy industrialists; fabulous mansions designed by nationally-known architects, including several by Frank Lloyd Wright; one of America’s first skyscrapers, designed by Louis Sullivan; and a fine park and parkway system designed by Frederick Law Olmsted. The peculiar historical and geographic factors that contributed to Buffalo’s rise are beyond the scope of this essay. What is relevant here is that Buffalo rose to prominence in an era of relative laissez-faire: no federal income tax, low state and local taxes, and no special legal privileges for unions. In 1900, all government spending was six percent of national income. [35]

There was little of the type of business regulation that came with the so-called and misunderstood u201CProgressiveu201D Era. Those who believe that the Progressive Era was a well-intended improvement over laissez-faire are the victims of a major historiographical con job. As Rothbard writes:

[O]ne of the main driving forces of the statist dynamic of twentieth century America has been big businessmen, and this long before the Great Society. Gabriel Kolko, in his path-breaking Triumph of Conservatism, has shown that the shift toward statism in the Progressive period was impelled by the very big-business groups who were supposed, in the liberal mythology, to be defeated and regulated by the Progressive and New Freedom measures. Rather than a u201Cpeople’s movementu201D to check big business; the drive for regulatory measures, Kolko shows, stemmed from big businessmen whose attempts at monopoly had been defeated by the competitive market, and who then turned to the federal government as a device for compulsory cartelization. [36]

According to Rothbard, u201CThe famed Progressive Era, an era of a Great Leap Forward in massive regulation of business by the state and federal government from 1900 . . . through World War I was essentially put through by the Morgans [J.P.] and their allies in order to cartelize American business and industry.u201D Big business used government regulation to gain a competitive edge over small business, Rothbard argued. u201CIf these policies are designed to tame and curb rapacious Big Business, how is it that so many Big Businessmen, so many Morgan partners, the Rockefellers and the Harrimans, have been so conspicuous in promoting these programs?u201D [37]

Buffalo’s greatest statesman, Grover Cleveland, a progressive in the truest sense of the word, helped pave the way for Buffalo’s glory days. Cleveland was the last of the Jeffersonian presidents (1885—1889, 1893—1897). Before that, as Mayor of Buffalo, he helped fight the corrupt political machine, or u201Cringu201D as it was then known, and its patronage and pork barrel politics. [38] In a campaign speech, he said, u201CIt is a good thing for the people now and then to rise up and let the office holders know that they are responsible to the masses.u201D [39] Cleveland was so successful fighting the machine that he was elected Governor of New York in 1882. [40] Cleveland’s Jeffersonian philosophy as President was described by historian John V. Denson:

Cleveland stood for sound money and the gold standard, and he was opposed to the protective tariff. He advocated the increased respect and sovereignty of the States as a check on the power of the central government. Cleveland generally supported the ideas of a limited federal government and the strict construction of the constitution, a free-market economy, and the separation of banking from government. [41]

The historical example of Grover Cleveland shows that libertarian ideas are not alien to Buffalo; rather, they are what made Buffalo great in the first place!

When did Buffalo start to decline? Some historians point to forces beyond local control to explain Buffalo’s decline. Was it the devastating psychological impact of the assassination of President William McKinley at the pinnacle of Buffalo’s success — the Pan-American Exposition in 1901? No, Buffalo maintained its economic vitality and population growth for many decades after that tragic event. As late as 1951, Buffalo was ranked eleventh nationally in industrial production and third in steel production. [42] In 1955, it was reported that Buffalo was the largest milling center in the world and that nine top manufacturing companies had plants in Buffalo. [43] In 1957, the Buffalo Evening News reported that business activity was at an all-time high. [44] A comprehensive economic study published in 1962, and reviewing data through 1958, concluded that Buffalo was in u201Crelatively good economic health.u201D [45]

The most popular excuse is to blame the opening of the St. Lawrence Seaway in 1959, which diverted boat traffic away from Buffalo and into the Welland Canal to the west. [46] The Seaway probably caused a loss of business to Buffalo’s railroads, which previously had relayed Midwest goods to the port of New York City. On the other hand, the Seaway reduced shipping costs for Buffalo manufacturers. Not only did they avoid railroad costs, but, as commentator John G. Rogers noted at the time, they could now avoid the exorbitant shipping costs of the corrupt New York City waterfront. Even if the Seaway caused net harm to Buffalo’s economy, which to my knowledge has never been proven, a healthy, growing economy would have been able to reabsorb idled workers or capital. The absurdity of this excuse is best seen by noting that somehow Buffalo couldn’t recover from the Seaway u201Cshock,u201D but West Germany and Japan were quickly able to build world class economies from the ruins of World War II.

Speaking of that War, one local politician, reaching back 55 years, blames the Marshall Plan for Buffalo’s decline; presumably because it helped our competitors rebuild their economies. There are so many things wrong with this argument that I cannot fully describe them all here. [47] For one thing, it ignores the enormous stimulus defense spending gave to Buffalo during and after the War. [48] Also, contrary to popular mythology, the Marshall Plan did little to help European economies and was mainly a corporate welfare program for American companies looking to extend their World War II gravy train of tax dollars. That’s why Senator Everett Dirksen called it u201COperation Rathole.u201D What got Germany up and running after the War was not the Marshall Plan but a return to a market economy and a sound currency urged by Wilhelm Rpke, an admirer of Ludwig von Mises. [49]

Even if the Marshall Plan did help European economies, that effect would have, on the whole and in the long run, helped the Buffalo economy by making valuable products available for sale here and creating wealthy foreign markets for our own goods. The aforementioned politician probably would not understand this, since aggressive ignorance of economics seems to be a requirement for being a politician in Buffalo. This example makes a larger and more important point: In the free market — as long as we exclude fraudulent transactions — which are not market transactions but crimes — everyone wins. Another’s gain is not your loss. In contrast, politics is the classic zero-sum game, where one person’s gain, for example, a recipient of corporate welfare, is the taxpayer’s loss.

While I do not accept the St. Lawrence Seaway excuse, Buffalo did coincidentally start its decline shortly after its opening. Let’s say about 1961, the beginning of President Kennedy’s administration (much beloved in Buffalo). Here, I use population as a rough surrogate for economic vitality. Erie County’s population, as a percentage of the country’s, held steady from 1920 through 1960, but its decline started shortly thereafter and was evident in every subsequent census. See Figure No. 1.

Figure No. 1
Population of Erie Co. as a percentage of the U.S. population

1920

1930

1940

1950

1960

1970

1980

1990

2000

0.59

0.61

0.60

0.59

0.59

0.54

0.44

0.38

0.34

The 1960s brought many changes to Buffalo, mostly bad. These included the destruction of middle class neighborhoods to make way for expressways, the construction of monstrous public housing projects, u201Curban renewalu201D projects, and u201Cwhite flightu201D to the suburbs — in part a response to court-ordered school desegregation. u201CWhite flightu201D was also a response to deterioration in the quality of life in the city. [50] Two enormous public-housing high-rises were built near downtown, resulting in the destruction of viable neighborhoods and the displacement of thousands of people. [51] As in other cities, these projects became warehouses for every type of social pathology. [52] One observer described the preparatory demolitions as leaving u201Ca 29-block scar on the face of the city.u201D [53] And that was the high point of this misguided exercise in Soviet-style economic planning.

In 1960, the u201Creformersu201D created a new, more centralized form of county government, with a county executive. Predictably, County spending has skyrocketed ever since. In 1962, the state took over the formerly private University of Buffalo and turned it into an enormous socialist/liberal think tank, an intellectual bulwark of the liberal welfare state. Only a few years before, a prescient community leader had warned: u201CLet’s keep it privately supported. Let’s keep it independent. Let’s keep it out of politics.u201D [54]

We can see how politicized the University became by analyzing the voting affiliation of the current law school faculty. The law faculty is often one of the more conservative bastions in the modern left-oriented university. Yet, it would be difficult to find a conservative of any kind on that faculty. Further, while 50 percent of the voters in Erie County are registered Democrats, that number soars to 86 percent for the University’s full-time law faculty. Even the adjunct faculty, which by definition could be expected to represent the community, does not: 66 percent of adjunct faculty members are Democrats. Accordingly, taxpayers are forced to subsidize political ideas they oppose so that their children can return from school with hostility to their parents’ values.

The political machine supported or acquiesced in all these projects. Union power was at its peak, as evidenced by frequent major strikes, sometimes involving multiple companies. The early 1960s also saw the beginning of a trend toward one-party Democratic government in the city and later in the county. The last Republican mayor of Buffalo was elected in 1961. This, however, was a fluke because there were two prominent Democrats running against him. In the 1950s, the Republicans were still competitive in the city; by the late 1960s, they were not. [55] The lack of real competition in city politics only exacerbated the trend toward political machines consuming ever greater amounts of tax dollars as shown in Figure No. 2.

Figure No. 2
GROWTH OF PER CAPITA GOVERNMENT SPENDING, 1960—2000 (2000 Dollars)

~

1960

2000

% Increase

Buffalo
$890

$3,290

369%

Erie County
$374

$1,078

288%

N. Y. State
$712

$4,184

587%

United States
$2,933

$6,353

216%

Total
$4,909

$14,905

303%

It is no accident that Buffalo’s decline began in the decade of the 1960s, the great liberal decade. While Buffalo was shooting itself in the foot with home-grown liberal policy mistakes, it was also the victim of economic liberalism on the state and federal levels. Throughout the decade, economic liberals ran the state government (Nelson Rockefeller) and the federal government (Eisenhower, Kennedy, Johnson and Nixon). For skeptics on Ike’s and Nixon’s economic liberalism, here’s a snapshot of their records:

Dwight Eisenhower

• Increased federal spending 30 percent
• Created the Department of Health, Education, & Welfare (and spending)
• Extended Socialism Security to 10 million additional persons
• Supported federal highway legislation
• Created NASA
• Started student loan program (a/k/a, program to raise college tuition so no one can afford it)
• Inflated enough to knock 9 cents off the value of your 1952 dollar

Richard Nixon

• Increased federal spending 70 percent
• Created EPA, OSHA, and Consumer Product Safety Commission
• Started u201Caffirmative actionu201D
• Created Office of Minority Business Enterprise
• Imposed price and wage controls
• Made your 1968 dollar worth just 78 cents by the time he left office
• Proposed minimum national income (and you thought that was McGovern’s idea)

Thus, in the 1960s, Buffalo was the victim of a multi-pronged, economic-liberal pincer movement joined in by all four levels of government — city, county, state, and federal, fully supported by the local political machine, and, unfortunately, endorsed by most of the voters as well. The combined impact of these liberal assaults delivered a blow to Buffalo from which it has never recovered.

Excuses, Excuses

Some analysts point to the aging industrial infrastructure and how companies left town or closed down instead of rebuilding in Buffalo. This begs the question: why did these companies move elsewhere instead of staying in Buffalo? They left Buffalo because the sum total of political interference with wealth creation — high taxes, extensive regulations, grants of monopoly power to unions, and bias in the courts against business [57] — was perceived to be greater than in other locales, usually to the west or south, sometimes out of the country. u201CBetween 1960 and 1975. . . manufacturing industries in the Northeast lost 781,000 jobs, while those in the South and West gained nearly three times that number.u201D [58]

All things being equal, companies prefer to stay where they are since moving involves large one-time costs. Things were not equal, however. Buffalo was worse. This is borne out by an analysis of the largest employers in Erie County as of the year 2000. [59] The first four are governmental units. The fifth and eighth are health care concerns that derive much of their funding from the government. Over sixty percent of the employees of the top fifteen employers worked for the government or were paid a substantial portion of their salary by the government.

Another argument that is made is that Buffalo started to lose industry when ownership passed from local citizens to national corporations. True, these national corporations had no sentimental attachment to Buffalo. However, neither did they have any sentiments against Buffalo. Rather, they presumably made a purely economic calculation that they could make more money elsewhere because the amount of wealth siphoned off by the Buffalo political elite was too large.

Some blame the weather for Buffalo’s plight. However, Chicago’s winter is comparable yet Chicago is bigger and wealthier. Toronto and Minneapolis are north of Buffalo and thriving. The severity of the weather in Buffalo is greatly exaggerated by the national media. They always talk about the Blizzard of ’77, not mentioning that this was by far Buffalo’s worst storm of the century. Buffalo’s summer is far superior to the endless summer steam baths of New York City, Washington and Atlanta. Finally, the list of climate-related disasters that rarely or never occur in Buffalo is long: hurricanes, earthquakes, tornados, catastrophic floods, killer heat waves, u201Curban heat islands,u201D mudslides, forest and brush fires, fire ants, and killer bees. Blaming the climate for Buffalo’s decline is a red herring.

It is commonly said that Buffalo has suffered from an inordinate number of major planning errors. These include building a football stadium in the suburbs rather than downtown and doing the same with the new state university campus. Expressways destroyed viable neighborhoods and critical portions of Olmstead’s park and parkway system. An ugly convention center was built that closed off a major element of Buffalo’s original radial street plan. The architectural police are still hunting down those responsible for that debacle.

It is true that the Buffalo political elite lacks vision and tends to make poor decisions on major projects. Incompetence and philistinism do play a role in these things. However, a Rothbardian analysis sees much more. Though the community as a whole suffered from these mistakes, certain discrete special interests benefited. Certainly, the fellow who owned the swamp that the Amherst Campus of S. U. N. Y. was built upon made out like a bandit. The construction companies and unions that built those expressways thought they were a great idea.

The problem with all these decisions is that they were political, that is, some people with political power were able to force these decisions on unwilling others by means of laws, taxes, regulations, and eminent domain. In contrast, since market-based planners cannot force others to participate, market actors have a natural incentive to make sure that all directly involved will benefit from their plans. They also have a strong incentive to make their projects palatable to the general community from which their customer base will be drawn.

It is pointless to complain about an endless series of projects that wasted tax money as if there was something that can be done about it other than funding government through user fees and voluntary contributions. (See, Chapter 29.) It is better to consider that tax dollar wasted as soon as it leaves your pocket. Thereafter, it will surely be spent by strangers on some mlange of programs and policies that you oppose and over which you do not have and never can have effective control. Conversely, it is critical to realize that from the point of view of the recipients of your tax dollars, they are never wasted. To the fellow who sold that toilet seat to the Pentagon for $1,000, that money was not wasted. To the fellow who used tax money to create a work of u201Cartu201D featuring a religious icon dipped in bodily fluid, that grant was not wasted.

Thus, tax money is always wasted from the point of view of taxpayers’ highest and best use for their own money, but is never wasted from the point of view of tax recipients. Many will be stunned by the former claim, yet, it is obvious. The point of taxation is to take from people control over a portion of their income to spend it on things the taxpayers would not. If taxpayers would voluntarily spend their money on the same things, isn’t it a little silly to have an army of tax collectors out there spending billions of dollars each year collecting taxes? Thus, it is true: tax money is always wasted from the point of view of taxpayers.

The fact that taxpayers are u201Crepresentedu201D does not alter this conclusion. To my knowledge, no one ever asked taxpayers if they wished to be represented as a rationalization for taxing them. My guess is most taxpayers would say, u201CNo thanks. Keep your representation and keep your tax bills, too.u201D Similarly, don’t be misled by various opinion polls that have people approving more spending on this or that government program. The fallacy in such polls is that they don’t carry the notion of choice far enough. Let’s ask this question: u201CWhere do you want your share of tax money spent: on [some such program] or returned to you as a refund?u201D You may respond to such arguments by calling them unrealistic and noting that there is no political system that allows such freedom of choice to each person. But there is such a system. It’s called the free market!

Let me pause here to point out that this analysis would not have taken the Founding Fathers by surprise. They too had a dim view of taxation, fighting a war over it, as I recall. They were only willing to tolerate it because they viewed it, like government itself, as a necessary evil; because they thought taxation with representation by the taxed (only those with property voted) would restrain taxation; and because they counted on government being limited to its few proper functions such as courts, police, and national defense. According to Jefferson, u201CThey are not to lay taxes ad libitum for any purpose they please.u201D Jefferson also said that u201Ca wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.u201D [60] Jefferson would be aghast to find out that today the state controls a large portion of our income and tells us in intricate detail what we can and cannot do with the rest of it. I am convinced that if the Founding Fathers had lived to see the ultimate failure of their Revolution and their Constitution to secure the promise of the Declaration of Independence to limit government to protecting the individual’s right to be left alone, they, too, would be radical libertarian opponents of the state.

Now add the political dynamic. The beneficiaries of any government program generally derive all or much of their income from that program and will fight to the death to keep it. In contrast, the typical taxpayer pays only a tiny fraction of his income in taxes to pay for any particular program. Thus, while tax recipients will struggle mightily to keep their programs up and running, taxpayers will be rationally apathetic and will choose not to fight them because so little is at stake and they are unlikely to succeed in any event. Thus, those who derive much or all of their income from taxes tend to dominate politics. That’s Buffalo in a nutshell.

The local elite’s last u201Cbrilliantu201D idea was to spend about $100 million of public money to encourage Adelphia Communications to build an office building downtown. The idea never made any sense, except for Adelphia and its allies, yet, it received almost universal support from local politicians and opinion leaders. The local newspaper refused to run my column condemning the project. (See Chapter 5.) Only the unexpected self-destruction of Adelphia saved the taxpayers from this costly pork barrel project.

Let’s look in detail at one enormous u201Cmistakeu201D made by the Buffalo political elite: building a single subway line from Downtown to the Main Street campus of the state university, six miles to the northeast. This was a stupid idea from the beginning. Buffalo is a city, and Erie a county, where you can get almost anywhere you want to go in 20 minutes by car. Why build an unnecessary subway line for $600 million? And why build it from downtown to the campus? Few students lived downtown and there was plenty of shopping at a plaza across from the campus. Finally, the project required that businesses along Main Street be effectively shut down for years. Why waste $600 million for such a foolish project?

First, we can state the obvious: the politicians who supported this project expected to personally benefit or else they would have chosen differently. They expected to benefit by receiving the votes and campaign contributions of the two main special interest groups that supported the project: construction companies and unions. These interest groups professed to believe that the project was in the public interest, of course. People never admit they simply wish to rob the public purse. The sincerity of such beliefs could only be tested in a free market: would these special interests have put their own money behind the project? Not a chance.

Six hundred million dollars is a large sum of money to waste. At the same time the subway was being built, Bethlehem Steel, once the fourth largest steel plant in the world, was gradually shutting down. The loss of Bethlehem in 1983 was the biggest blow to Buffalo since the McKinley Assassination. In my mind, the building of the subway and the closing of Bethlehem are causally connected. That $600 million wasted on the subway line, translated into tax cuts for private business, could well have provided Bethlehem with the funds needed to clean up and modernize its enormous plant in Buffalo. We will never know.

The local political elites treated Bethlehem like a cash cow. A corrupt political machine formed in Lackawanna, just south of Buffalo where the plant was located. This machine fed off the huge property taxes Bethlehem paid. At one time its property taxes provided Lackawanna with 65 percent of its income. Lackawanna was originally known as the u201CSteel Cityu201D; its colloquial name soon changed to the Steal City. Lackawanna politicians were often in trouble with the law.

The politicians and the unions thought they could milk the steel plant since it isn’t easy to move a mile-long, lakeside industrial plant. While this was true, the company played its own chess game. For a while they could afford to pay the price of this political extortion racket. World War II had wiped out the competition. After the War, however, Germany and Japan caught up quickly, and international competition forced Bethlehem to respond. They chose not to invest in new technologies in Lackawanna and spent their money elsewhere. Then, when the plant had substantially depreciated, they closed up shop. [61] The politicians and unions were left wondering what had hit them and never acknowledged that it was their own greed.

It is no doubt true that Buffalo has also suffered from being located in New York State, which under the Rockefeller and Cuomo regimes became a model for Big Government at the state level. Nevertheless, Buffalo and Erie County have maintained bloated payrolls and high taxes compared to many other areas of the state. Also, the rise of Big Government state-wide has at all times been fully supported by the local machine, since such a development expands the patronage pie. Erie County votes have often been a critical factor in the election of liberals like Mario Cuomo and Hillary Clinton. This excuse, too, must be rejected.

Economic Impact of Unions

Since the u201Crightu201D of workers to force employers to collectively bargain with them is considered sacred in Buffalo, let me spell out the Misesian/Rothbardian view of the matter. Mises was not shy in his assessment:

[W]hat is euphemistically called collective bargaining by union leaders and u2018pro-labor’ legislation is . . . bargaining at the point of a gun. It is bargaining between an armed party, ready to use its weapons, and an unarmed party under duress. It is not a market transaction. It is a dictate forced on the employer. [62]

Henry Hazlitt argued that:

[I]f a particular union by coercion is able to enforce for its own members a wage substantially above the real market worth of their services, it will hurt all other workers as it hurts other members of the community. [63]

In his monograph, u201CWhy Wages Rise,u201D [64] economist F. A. Harper compiled data showing that American wages had been rising since 1855, long before unions reached their peak in private sector membership in the 1940s. He also notes the close parallel between rising wages and rising productivity from 1910 through the 1950s. Wages follow productivity which follows capital investment. Workers who are paid substantially less than the value of what they are producing will be bid away from those chintzy firms by other u201Cgreedyu201D entrepreneurs who see that they can pay them more and still make a profit. In the long run, and in the economy as a whole, it is market competition and capital investment that determine wage rates.

Thus, in Buffalo, union workers gained at the expense of their non-union brethren, who were left with less capital bidding for their services, and ended up working harder for less or not working at all. I note that even at Bethlehem’s peak there was always a large group of unemployed. The locals apparently did not have a clue why this occurred and didn’t bother consulting Mises, Rothbard or Hazlitt.

Mises points out the undeniable truth that unions are only useful to their members when they constitute a modest portion of the labor force: u201Cunionization can achieve its ends only when restricted to a minority of workers.u201D What good would it do to raise the wages of all workers by ten percent when those same workers must pay more for everything they buy to pay for everyone else’s raise?

It is ironic that unions have created an image for themselves as standing up for the interests of the u201Clittle guy.u201D The reality is that, like any other special interest group, unions obtain benefits for their own members at the expense of non-members, who make less money or who remain unemployed, and at the expense of consumers, who pay higher prices for goods and services. Unions have often allied themselves with gangsters. Unions often discriminated against racial or ethnic minorities, whom they perceived as their competition for jobs. In Buffalo, unions were always allied with the political machine that has ruined our economy. Isn’t it time to remove the halo over unions?

Let me make it clear that I have no objection to unions per se, any more than I object to other private, voluntary organizations like the Catholic Church or the Rotary Club. I don’t even object to unions engaging in actions that violate antitrust laws. (Libertarians oppose antitrust laws for too many reasons to detail here.) If workers want to get together and peacefully attempt to maximize their collective economic influence, fine with me. What I object to is the fact that the state has given unions special legal privileges at the expense of non-union workers, businesses and consumers.

Unintended Consequences

The laws of economics cannot be evaded or avoided any more than the laws of physics can be ignored. Human beings are free to engage in any action that is physically possible. Neither physics nor economics says otherwise. People are free to jump out of airplanes without parachutes, and people are free to enact minimum wage laws. We are, however, absolutely unfree when it comes to avoiding the consequences of our acts as dictated by physical or economic law. The jumper will be crushed to death by a collision with the ground which unleashes an amount of energy strictly determined by his mass and speed and the density of the ground. The minimum wage law will cause all those perceived by employers to be unable to produce sufficient gross revenue to justify their wages, not to be hired, or, worse, to be fired. It will cause unemployment. Our only options with respect to natural laws are to ignore them at our peril or study them so we can adjust our behavior accordingly and be happy.

Buffalo’s political class and those members of the public who lend them support, have chosen to ignore economic laws. Therefore, not only do they fail to achieve their stated goals, but the consequences of their policies tend to be the opposite of those goals. This is the well-known principle of unintended consequences, described by Mises:

All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which — from the point of view of the authors’ and advocates’ valuations — is less desirable than the previous state of affairs which they were designed to alter. [65]

As Mises points out, their only choice then — assuming they are not going to adopt laissez-faire, repudiate their entire program and commit political suicide — is ever greater intervention. (As previously argued, the politicians and their allies personally benefit from their public policy u201Cerrors.u201D) Every time a Big Government program fails, the politicians urge yet another one to cure the original problem. Thus, government grows ever larger while the private economy shrinks. Government creates its own demand. The results will always be the same.

As alluded to at various points throughout this essay, the inherent tendency of the state is to grow. There are five main reasons for this which are, unfortunately, structural features of political life:

1. rational apathy — the incentive for some people to increase the size of the state outweighs the incentive the rest of us have to fight them;

2. government control over political ideas — the state uses its control over education and other idea-disseminating organizations to propagate support for further government growth;

3. government creates its own demand — because the state’s various interventions into the market economy always fail, ironically, they increase the demand of the uninformed majority for even further interventions to cure the problems caused by the prior interventions;

4. the productivity of the mixed economy — given the inherent tendency of the state to grow, only extreme dissatisfaction among the populace will rouse them to act; however, even a partially free market produces enough wealth to mollify the people;

5. government has a monopoly on the use of legal force — government grows because it can. Given the universal human desire to accomplish goals with the least possible exertion, politicians have an irresistible urge to use the state’s powers to continually expand the amount of wealth they control. Anyone who objects can always appeal to the politicians’ judges and can expect to be told, u201CGet lost!u201D

To summarize, so many bad decisions have been made in Buffalo because politics controls so many aspects of life here and those who control politics tend to make decisions that will enrich and empower themselves and their allies. They get away with the scam because their decision-making process is not constrained by the discipline of profit and loss calculations.

This process of self-serving decisions being made by the political elite is exacerbated by the absence of a strong class of independent-minded persons of means. They have been gradually driven away, and thus the local political elite’s only foe is a ragtag group of citizen activists, usually leftists, who are rarely successful. The leftists’ instinctive populism usually leads them in the right direction in opposing the establishment’s plans. However, because of their egalitarian fantasies, economic ignorance, and love of central planning, their alternative proposals are rarely an improvement.

The few independent figures in Buffalo’s public life are disorganized, without funding, and often legally harassed — unlike the VIPs. By their nature, political machines tend to retaliate against those who challenge them. Remember, a political machine exists to use the government to enrich and empower its members at the expense of non-members. The whole enterprise is morally bankrupt and rationally indefensible. Thus, when opponents arise, the machine does not and cannot reason with them; rather, it continues to use the tools it has always used. It uses the state to punish its enemies. If the machine’s modus operandi is to use power for its own benefit at the expense of society, it will not hesitate to use that same power against those who threaten the machine. It has at its disposal the legal command posts of society — the police, the prosecutors and the courts.

For example, in Brooklyn, the machine responded to a lawyer named John K. O’Hara, who had angered politicians with a lawsuit over election fraud, by prosecuting him for a technical election law violation and having him disbarred. [66] Buffalo is no different. One local gadfly was prosecuted 11 times in a row for allegedly harassing politicians. The charges were dismissed each time. [67] Another was arrested on election night on trumped-up charges of harassing poll workers. I have carved out a niche representing people who have been victimized by the machine’s unlawful firings. In recent years, it has been common for the machine to retaliate against the spouses of its political enemies, a practice the courts have held unconstitutional.

For having the temerity to help a former professor sue the local state law school, I was subjected to a three-year civil contempt suit, culminating in a trial in federal court at which I was the chief witness against myself. I was a poor witness, at that, as I stated no facts which remotely constituted contempt of court. To fully understand this bizarre proceeding, we have to return to a subject alluded to earlier. Query: Was this case yet another example of the local power elite retaliating against its opponents?

Judicial Politics in Buffalo

To many, the term judicial politics is a contradiction in terms. In reality, the judiciary is thoroughly political. The machine in Buffalo treats judgeships as just another form of political patronage. The qualifications of the candidates are a secondary factor, as I had learned as a teenager. Selection of judges is based on prior contributions to the party, connections to the party, prior service to the party, and a commitment to hire staff recommended by the party. Sometimes, judgeships are used to reward a racial or ethnic group or women for their loyal support for the party. If we define affirmative action in its pejorative sense [68] — the promotion of lesser-qualified candidates on the basis of race, ethnicity, sex, or religion — it must be true that it conflicts with the goal of finding the best people for the job.

Unfortunately for me, the two judges assigned to my case were both, in my opinion, [69] affirmative action hires. I vividly recall that when one was appointed, her appointment was praised since she was the first female on the federal bench in Buffalo. Likewise, when the other judge was appointed, the newspaper announced that he was the u201Cfirst Polish-American judge in the Western Judicial District of New York.u201D I had the misfortune of dealing with both of these judges in the aforementioned contempt case filed against me.

My client, former law professor Jeffrey Blum, had sued the University at Buffalo law school for denial of tenure for political reasons. The law school is an influential local political/legal institution. Many of the area’s lawyers and judges went to school there. As noted earlier, the law school is controlled by left-liberals and shares a similar outlook with the local liberal political machine. The connections between the machine and the law school are numerous. Machine legislators keep tax money flowing to the school; the school hires local politicians as lecturers and gives well-publicized awards to u201Cright-thinkingu201D local judges and lawyers. (Make that, left-thinking.)

I appeared in the case only as an informal assistant to Blum, as he was chief counsel on his own behalf. During the case, he was accused of unlawfully disclosing, in a letter, information he had received during pretrial discovery. He vehemently denied this. I was joined in the contempt motion, although I had not seen the file at issue and was not the author of the letter. The motion against me was a fishing expedition, an improper use of a contempt proceeding or any lawsuit. A lawsuit without a factual or legal basis is itself a tort (non-contractual civil wrong). Perhaps this was just a case of bad lawyering. The motion for contempt was brought, however, by one of the top law firms in Buffalo. No, the utter baselessness of the motion against me led me to wonder whether one of the purposes of the motion was to punish me for helping a man who was challenging the local power elite. In any event, they did this apparently with full confidence that they would not be sanctioned by the friendly judges assigned to the case. They were right about that.

The moving parties justified their motion by saying they wanted to know what legal advice I gave to my client. I contended that I could not reveal discussions with my client because they were privileged. At the hearing of my motion to dismiss the contempt proceeding as frivolous and violating attorney-client privilege, u201Cthe first woman on the local federal bench,u201D without ruling on my motion, proceeded to ask me to reveal the privileged information! Not only did this reveal her ignorance of proper legal procedures, but her visible anger when I refused to do so revealed her bias as well. u201CI’m not going to play games here. . .u201D, she said, without intimating how claiming attorney-client privilege constitutes a game. (I later moved for recusal of the judge on the grounds that the lead partner of the firm that brought the motion against me had served on the committee that recommended that she be hired in the first place.) [70] Without any factual or legal basis, and without any accusation that I had done anything wrong, she ordered me to appear before the district judge to show cause why I should not be held in contempt. Another lawyer who was informally assisting Blum was also named in the motion failed to appear in court at all. Nonetheless, he was not ordered to appear before the district judge.

I renewed my motions for dismissal and sanctions before the district court but when oral argument came I could see I had wasted the paper. Ignoring my arguments, the judge gave a stern lecture about what serious allegations these were. What else could he do? The professor moving for contempt was represented by a politically-powerful law firm whose founder had attended college with the judge. The firm regularly represents politicians, public officials (including judges) and politically-powerful unions and gets paid well for it. They are big political contributors. They hire the children of judges. They hire the attorney-clerks of federal judges before whom they regularly appear. They serve on unpaid but important government committees such as those involved in judicial selection. All lawyers are equal before the courts, but some are more equal than others. During the course of the lawsuit that firm would hire one of the judge’s law clerks. Ironically, before all this happened, I had navely told Blum that I thought this judge would be fair: he did not attend the law school and he was a Republican as well, perhaps not close with the liberal Democrats there.

So I was forced to bring my father — the best lawyer I knew — out of retirement to represent me. My brilliant lawyer, after an exhaustive review of the court file, soon came to the core of the issue. Where was the other lawyer who was served with contempt motions and who never appeared? Funny that the politically-connected firm that had brought the motion against the missing lawyer hadn’t asked where he was at the initial court appearance. This was surely the first time this highly-regarded firm had ever made that error. Hmmm. I told my father I wasn’t sure, but I had heard he was a political friend of the district judge. We later found out how friendly they were. This lawyer had had an unethical ex parte (secret) communication with the district judge. The judge told him, u201CDon’t worry, Frank, you’re out of the case.u201D My father courageously confronted the judge with this information and information that the lawyer had helped the judge with a prior campaign, and asked him to recuse himself.

The judge denied having had the conversation, so we decided to depose the lawyer in question and get him under oath. Here’s where the rubber meets the road. The law firm representing the professor, who had previously sought to u201Cinquireu201D of Frank about his involvement with the alleged discovery violation, now sees where this is going and decides to bail out their friendly judge. They move to kill the deposition! They filed papers before the female magistrate; we filed voluminous papers against the motion and waited. The magistrate granted the motion to cancel the deposition on the grounds that u201Cno briefs were submittedu201D in opposition to the motion. However, in the same order, she mentioned the very papers that were not u201Csubmittedu201D by their file document No. 268. A call to her legal assistant to clarify the mystery was met by a stonewall response: u201Ctake it up with the district judge.u201D

We did that by filing an objection to the magistrate’s order. We also moved before the magistrate to reargue her order. (By that time, the court file contained four copies of the papers allegedly not u201Csubmitted.u201D) Both efforts were fruitless, as the district judge denied the objection and held the motion to reargue u201Cmootu201D (which was a lame excuse since it was not moot). No oral argument was held on any of the four motions or objections relating to the deposition, which is highly unusual in federal court. Of course, the district judge should have recused himself for obvious reasons. Violating the ancient rule that no one should be the judge of his own cause, he killed the deposition that, I believe, would have established grounds to prove him a liar and have him removed from the bench. That, ladies and gentlemen, is an example of how our vaunted federal courts u201Cwork.u201D What it came down to was raw power; might makes right; their army was bigger than mine.

Next, we filed a complaint of judicial misconduct. The lawyer in question filed an affidavit that denied the ex parte communications and denied telling us about them. We went to the FBI. Contrary to Justice Department rules, they went to the highly-politicized local U.S. Attorney’s office that proceeded to advise that perjury is not a crime. In my appeal for sanctions against the firm that moved to hold me in contempt, I was rudely treated by the illustrious Second Circuit Court of Appeals. Learned Hand’s [71] successors would not let me make my argument, instead asking me, in Kafkaesque fashion, what I was doing there and implying they had no jurisdiction because the district judge had never formally denied my motion for sanctions. (He had ignored it.)

They scoffed when I said they had jurisdiction because the motion had been denied u201Csub silentio.u201D Incredibly, the same court later pretended to rescue my confusion and discover a proper basis for jurisdiction: sub silentio denial of the motion. Though the judge never discussed my motion for sanctions, the Second Circuit said he exercised proper discretion in denying a motion he never denied. The court devoted exactly one short paragraph to a case I had delineated in a fifty-five page brief. When the judge in question had been a prosecutor, the Second Circuit did not hesitate to reverse a conviction because he had misstated facts to a jury. After he joined the judicial club, however, the court exhibited little interest in that same character flaw.

If this story seems unbelievable, join the club. I couldn’t believe it either and it happened to me. Incredulity is the common reaction when I tell people about this case. Incredulity was my reaction at every point.

I spent some time on the details of my case so that the reader does not have to accept my own interpretation of what happened and so you can judge for yourself. Nevertheless, it is not as complicated as it sounds. Basically, a politically-connected law firm was allowed to maintain a frivolous contempt case against a politically-independent lawyer whose client was suing a politically-powerful legal institution. When it was discovered that the court itself had let a political friend off the hook, but allowed the same case to drag on against me, the legal establishment coalesced to contain the damage, in violation of numerous legal rules and principles. In sum, those who control the courts said, u201CIt’s my basketball, you’re not playing.u201D They treated federal court like a private club.

Let me emphasize that there are fine men and women on the bench in Buffalo, including on the federal bench. They are there in spite of the system, not because of it. They are good people in a bad system. They are accidents. However, when judges are installed by political machines, they will tend in office to serve the political interests of those who put them where they are. These judges will be tempted to rule in favor of the political elites and against their enemies, even if they have to totally disregard the law, truth and morality. When their chicanery is discovered, the whole governmental apparatus, as in my case, is likely to respond by closing ranks to protect the political insiders against the outsiders.

Influence over the judiciary is yet another way that the local political elite protects and perpetuates itself. Judges selected by the political power structure have an uncanny knack for finding a way to rule in favor of the power structure in litigation. This is not to say that in the run-of-the-mill court case litigants do not get a fair shake. They often do. However, when a politically-connected party faces off against an unconnected party in litigation, politically-selected judges tend to serve their benefactors well.

This is a truth that most lawyers recognize but are afraid to publicly admit. Stalin got more criticism from the Politburo than today’s judges get from those who practice before them. How is it that in a democracy with a First Amendment we allow judges to punish lawyers who dare to criticize them? Other judges on appellate courts then decide whether the lawyer’s free speech rights have been violated. Power corrupts. Those who know best what is wrong with the courts are afraid to speak out, lest those same courts take away their law licenses.

Should I have been incredulous about my treatment in the courts? Should I have known better? Oddly enough, more than one person advised me over the years that, if I continued to represent political gadflies and continued to speak out against the powers that be, I would be subject to retaliation. What did they know that I did not? Pondering that question, I have to plead guilty to navet. I plead guilty to not applying libertarian insights into the nature of political power to my own circumstances. I plead guilty to expecting the judicial system to work according to its promises and not according to its nature. I confused ideals with facts. I forgot the lesson of Aristotle that each thing acts according to its nature. I will remedy that lapse now by examining the nature of today’s courts.

American Justice?

Let’s begin at the beginning by pointing out a fact that is so obvious that it is almost entirely forgotten. It is taken for granted that, for the sake of peace, justice and order, the courts must have a monopoly on judicial power within the boundaries of their jurisdiction. Yet, the ability of today’s courts to achieve any of these values with the monopoly power they possess is subject to serious doubt. Even if justice implies a court system with the monopoly power to do justice, the converse is not true. The mere existence of monopoly judicial power does not imply that it will be used justly. Whenever that monopoly power becomes unhinged from true justice, as it did, for example, in Stalin’s Soviet Union or Hitler’s Germany, that monopoly judicial power thereby becomes a great evil. One suffering under Hitler’s or Stalin’s u201Cjudicialu201D edicts would have wished to have recourse to some judicial competition, to say the least.

Order is a term frequently used but rarely defined. The concept of order is substantially similar to the concept of peace. For example, when people use the term civil disorder, they are usually referring to riots and other forms of widespread acts of violence against persons or property. In another sense, order involves not merely peace, but the provision of some assurance that peace will continue and that disputes will be amicably resolved. However, what people want is not merely some reasonable assurance that disputes will be resolved, but that they will be resolved with at least a rough approximation to justice: the correct application of the right principles to the reasonably known facts. While the state in all its forms, even dictatorship, provides a means to resolve disputes, its capacity to resolve them justly is subject to serious dispute. Why should we think the state, even a democratic state, will resolve disputes justly?

An immediate and intractable problem arises. It is claimed that a state with a monopoly on dispute resolution powers is the very prerequisite of a civilized justice system. So such power is bequeathed upon the state or seized by it. Now we have a situation in which, if one wants dispute resolution services, one must go to the state. What are the ramifications of this monopoly? Like any monopolist, the state will tend to charge more for its services than private arbitrators would. Moreover, since its revenue is guaranteed, and the courts have little incentive to attract or please its u201Ccustomers,u201D government courts have little incentive to incur the costs of producing justice: the intellectual, moral and physical effort required to achieve true justice. Thus, overall and in general, state-provided justice will tend to be expensive, time-consuming, and of relatively poor quality. There is the story of the local judge who, confronted with having to wade through hundreds of pages of summary judgment motion papers, instead lazily told the lawyers, u201CThere must be an issue of fact in there somewhere. Motion denied.u201D

The biggest problem, however, with government courts arises from the unusual nature of their product. Sure, a state monopoly car company would sell overpriced and poorly-made cars. A government monopoly over the law, however, is much worse. The product of the government courts is the definition of the legal rights and powers of all persons and institutions in society, including themselves and the government of which they are a part. Therein lies the problem. As Hans-Herman Hoppe argues:

u201CUnder the assumption of self-interest, every government will use this monopoly . . . to its own advantage. . . . Hence every government should be expected to have an inherent tendency towards growth.u201D [72]

Thus, government courts will tend to expand the rights and powers of the government, while shrinking the rights and powers of the citizenry. Individual Americans have only slightly more ability to halt this perpetual growth of the state than did their sad counterparts in Stalinist Russia or Nazi Germany, though, unlike them, we remain free to squawk about it, for the time being anyway. This theory is confirmed by history. The United States government has been growing steadily ever since 1776, with the reliable, continual and unsurprising endorsement of its own courts. Constitutions do not thwart this process since the courts themselves define what they mean. That is, the government resolves any dispute as to the extent of its own powers:

u201C[A]ny written limits that leave it to government to interpret its own powers are bound to be interpreted as sanctions for expanding and not binding those powers. In a profound sense, the idea of binding down power with the chains of a written constitution has proved to be a noble experiment that failed.u201D [73]

Thus, government courts, unconcerned about securing or satisfying customers, tend to be more concerned about looking after their own interests and the interests of their allies. They adopt, for example, elaborate and fairly inflexible rules of procedure, most of which seem designed to serve the needs of the court, not the litigants. Litigants are forced to hire expensive attorneys, usually specialists who know their way around in that particular court. Dispute resolution agencies which cannot monopolize business tend to adopt much simpler procedures. This banal example makes the larger point. Government courts, being monopolies, tend to serve their own interests, not those of the litigants, in all aspects of their work, from procedure to substantive decision-making. This lack of solicitude is the direct and inescapable result of the very monopoly powers we are told courts must have!

A further point: it is rarely remarked that government courts are subject to the same special interest group dynamic that plagues the other two branches of government. Most citizens want courts that mete out justice. Yet, a small group of people view the courts as a means to increase their wealth, power and prestige. Which group will tend to prevail over the other? We need only apply the concept of rational apathy that earlier led us to conclude that the fellow who wanted an easy job in a bureau would prevail over the citizen who wished to have lower taxes. That is, those who view courts as the means for securing high-paying, powerful and prestigious employment, or who regularly transact business in the courts — such as lawyers, large corporations, large institutions, and various legal special interest groups and political parties — have a far greater incentive to be involved in the process of selecting judges and determining court rules, policies and philosophies than the average citizen does. Thus, the courts will tend to reflect the views of the legal special interests rather than those of the general public.

Ideally, the courts should resolve disputes justly. Justice is not a meaningless abstraction; it can be defined. As I see it, justice is the resolution of disputes based on the application of the proper or correct legal principles to the knowable facts within a process that is speedy, cost-effective, and as simple as the circumstances permit. Most critical for our present purposes is the application of the correct legal principles. Will government monopoly courts tend to apply the correct principles of law consistent with justice? What gives government courts their cachet in the first place is not proof of their philosophic wisdom but, rather, the fact that they or their allies or predecessors have managed by political or military means to drive out the competition and establish a monopoly. It is not at all clear why the power to establish a monopoly of a good or service by means of political power or military force is proof of the ability of the monopolist to deliver a high-quality product, in this case, justice. Quite the contrary. Justice and power are usually at odds. The whole point of justice is to restrain power. To rely on those adept at power politics to guarantee justice is, to paraphrase Oscar Wilde, to seek the triumph of hope over logic and experience.

If we define justice from a Lockean or Jeffersonian perspective as protection for the individual’s rights to life, liberty, and property, we may be skeptical about whether those who establish a court system by coercion, and seek to staff that system and thereby forcibly impose their legal principles on the entire country, will be at all solicitous of pacific Lockean or Jeffersonian legal principles. Governments tend to be founded and staffed not by apolitical or antipolitical libertarians or Jeffersonians but by power-hungry Hamiltonians who tend to have much more expansive plans for government beyond merely keeping the peace and recording property titles. Even if we assume that government monopoly courts were established with the best of intentions, like the other two branches of government, they quickly come under the control of the various special interests which seek to use the courts to unjustly advance their own welfare at the expense of others. For these reasons, in actual practice the courts have been absolutely hostile to Lockean/Jeffersonian/libertarian principles, as theory and common sense would have predicted. [74]

Turning to yet another problem with the justice system, we often evaluate its performance based on its ideals and rarely look at its actual performance. Because power corrupts, corruption, bribery, and favoritism regularly plague the state’s legal system. For example, in 1999, 580 people were convicted of u201Cofficial corruption, including thirty-two federal law enforcement agents.u201D [75] In 1998, 42 police officers in Cleveland were charged with conspiracy to distribute cocaine. [76] Other law enforcement agents accused of corruption that year included:

• Three Detroit police officers who were charged with conspiring to rob approximately $1 million.
• In Starr County, Texas, the sheriff, a justice of the peace, and five county jailers who were charged with bribery and conspiracy to commit bribery.
• Nine current or former New Jersey police officers who were charged with racketeering involving protection of prostitution and illegal gambling. [77]

In January, 2002 a New York judge was arrested and charged with soliciting a $250,000 bribe. [78] In April of 2003, another New York judge was arrested with several others and charged with systematically fixing divorce and child custody cases. [79] Since all the parties to judicial corruption have a strong incentive to keep it a secret, is the known corruption merely the visible part of a giant iceberg?

In addition to overt corruption, there is a more sinister and largely invisible form of corruption that only close observers of the courts can discern. Judges in a democracy tend to be political animals. It matters not whether they are elected or appointed. The notion that appointed judges are apolitical is a fantasy entertained mainly by nave and self-appointed u201Ccourt reformers.u201D In truth, the politics involved in appointing judges is usually more covert and insidious than that involved in electing judges. The public rarely learns about why judges were appointed. Who pulled what strings? Who owed what to whom? Who will owe what to whom in the future? Even politically astute lawyers often do not know the answers to these questions.

The selection of elected judges to run for office is more transparent. They are generally lawyers associated with local political party organizations. They owe their loyalties to such organizations. However, they usually have at least some organic connection to the local community, else they would lack the support to be elected. Lawyers appointed to judgeships usually are more wedded to secretive elite circles. Is that why elites almost unanimously favor appointing judges? [80]

It has long been common knowledge that nominations for the elected position of state trial judge are often based on which candidates gave the largest contributions to the party. This fact is often cited by those who favor appointing judges. The partisans of appointing judges were surely deflated by the news that Governor Pataki recently appointed to the New York Court of Appeals a man who gave the Republican Party $219,000. [81]

It is a common belief that federal judges, who are appointed, are less political than state judges who are usually elected. However, every federal district judge in Buffalo started out as a politically-appointed United States Attorney or Assistant United States Attorney. Most had previously held or campaigned for state elective office. The local party chairmen are heavily involved in the selection of federal judges. The notion that judges who were themselves politicians, who are recommended by politicians (the party chairmen) to please their contributors, appointed by a politician (the President), and confirmed by still more politicians (the Senators), are or can be apolitical is one of the grand myths of American government. It is nonsense.

Whether judges are elected or appointed, they are all products of a political power structure. They therefore bring to the bench the general mindset of that power structure. They will tend to favor the interests of the power elite because of a similar outlook, loyalty, gratitude, or a desire for future appointments and other favors from the power brokers for themselves and their families and associates. Even federal judges, appointed u201Cduring good behavior,u201D [82] in effect, for life, tend to look out for the interests of the power structure whence they came. Perhaps from modest backgrounds, they are now accepted into elite circles. Having achieved judicial power, many become social climbers, seeking the acceptance and the numerous and subtle favors elite circles can now confer. While such judges may fairly adjudicate disputes between ordinary private persons, when such persons litigate against the state, or members of the power elite, they will tend to discreetly favor the elite. They are usually clever enough to disguise the favoritism.

Though my comments will probably cause consternation throughout the legal and judicial establishments, much of what I write was corroborated by one of New York State’s most distinguished jurists speaking at my father’s retirement dinner in 1991. He made a special point of noting that, in his decision-making process, my father had not been u201Cresult-oriented.u201D He was not like those judges who u201Cdid not have in mind the role they must play in administering justice.u201D That is, my father did not have a preconceived personal, political or philosophical axe to grind but sought out neutral justice in the cases before him. Yet, if this attitude was predominant in the courts, this jurist would not have considered it a notable virtue of my father’s career.

When a private person or entity has a dispute with the state itself, the dispute must be resolved by the state’s courts, else it ceases to be a state with the monopoly power to resolve disputes. We must, however, point out, in the spirit of the Emperor’s New Clothes, the long overlooked but obvious fact that such dispute resolution is a sham and mockery of justice. We are told that no one should be the judge of his own cause, yet the state, in disputes with its own citizens or subjects, is always the judge of its own cause. That this is not so because the state refers such disputes to its judicial branch is a silly and stupid argument. Similarly, I suppose, the next time I have a dispute with the United States I will insist that the dispute be resolved by an arbitrator selected by me.

In sum, the monopoly state provides no assurance that disputes will be resolved justly, merely that they will be resolved. Of course, all disputes at all times and all places are resolved one way or another. Yes, but at least the state does so without the use of force. This too is a myth, an illusion. The state resolves all its disputes by the use of force. Yes, but the force is so overwhelming that it does not have to be used, merely threatened. Even this is false. The police use force (beyond mere handcuffing) against half a million Americans each year. [83] In a typical year, 373 people are u201Cjustifiablyu201D killed by law enforcement officers. [84] Additionally, many innocent people and criminal suspects have been unjustifiably assaulted and/or killed by law enforcement agents.

A 1998 report by Human Rights Watch studied police behavior in 14 large American cities from 1995 through 1998. The report concluded:

Our investigation found that police brutality is persistent in all of these cities; that systems to deal with abuse have had similar failings in all the cities; and that, in each city examined, complainants face enormous barriers in seeking administrative punishment or criminal prosecution of officers who have committed human rights violations. Despite claims to the contrary from city officials where abuses have become scandals in the media, efforts to make meaningful reforms have fallen short. [85]

Yes, but at least only the state uses force — the disputants do not. Here, we are pretty far from the notion that the state does not use force to resolve disputes. But even here the state comes up short. Many law enforcement agents themselves are killed or assaulted. Each year, about 135 law enforcement officers are killed in the line of duty in the United States. Another 50,000 police officers are assaulted. Many judges, litigants, jurors, lawyers and witnesses involved in criminal and civil litigation have been murdered, assaulted or threatened by disgruntled parties.

Many episodes of social violence have resulted from a perception that government courts or law enforcement officers have not resolved disputes fairly or protected citizens adequately. In 1992, there was a major riot in Los Angeles sparked by dissatisfaction with an acquittal in a criminal trial. [86] The riot resulted in 54 persons killed, 2,383 injured, 13,212 arrests, and 11,113 fires. [87] A similar riot occurred in Liberty City, Florida, in 1980 after a jury acquitted four police officers charged with homicide.

The state’s abject failure to resolve conflicts without the use of force by itself, by litigants and by their sympathizers in the community is rarely acknowledged.

Thus, the state does not assure that disputes will be resolved justly and without using force. Many scholars define u201Cwaru201D as a conflict resulting in at least 1,000 combat deaths. By that measure, the United States justice system, the world’s most highly-touted, has a u201Cwaru201D every two years! All told, the number of people killed or injured as a result of the state’s enforcement of its laws is truly enormous. [88] This is far from the civilized, peaceful and orderly system of schoolboy legend.

The state itself exacerbates and stimulates conflict. Its legal system does this directly and its policies do this indirectly. As Hans-Hermann Hoppe and others have argued, the state’s policies, based as they are on coercion and confiscation, create a moral atmosphere which encourages the development of aggressive personalities. [89] Further, the state’s legal system is so complex that few understand it. This reduces respect for the law, diminishes its moral force, makes conflicts more likely and makes them more difficult to resolve. Inordinate complexity also allows judges to mask politically-motivated decisions in a dense fog of arcane legal reasoning. In most areas of human knowledge, increasing complexity is a sign of progress, an indication that greater information has been acquired. Not so with the law. The law’s crucial function is to guide people in their interactions with other people; to reduce disputes and misunderstandings; and to make possible the expeditious and just resolution of disputes that do arise. Further, since the ultimate foundation of respect for the law is community sentiment, the essential principles of law must be readily understood by most people. The modern statist legal system has failed in this critical function. No one fully understands it, not even the most brilliant lawyers and judges. Legal specialists do not even grasp all the intricacies of their own fields.

Thus, today’s court system consistently fails to deliver on its promise to provide peace, order and justice in exchange for the monopoly power it has been given. It resolves disputes slowly and expensively. Its legal principles are often inscrutable, its procedures arcane. Like the legislative and executive branches, it panders to special interests. [90] The courts have consistently put their stamp of approval on the ever-increasing growth of government and the resulting shrinkage of our liberties.

Much of today’s legal system consists of arbitrary rules arbitrarily applied. This is largely the result of the abandonment of the simple axioms of Lockean justice that animated the American Revolution: self-ownership and ownership of justly acquired property. Over the years, these axioms of justice were jettisoned for the wonderful, wacky world of virtually unlimited legislation by political hacks, endorsed by the judges they install and best described by one-time Buffalo newspaperman Mark Twain: u201CNo man’s life, liberty or property are safe while the legislature is in session.u201D Once you deny that individuals own themselves and their property, no rational or moral stopping point to government action can be conjured. The whim of the legislator and judge controls. That was not the original idea.

The founders were extraordinarily well-schooled in history and political philosophy. Jefferson, for example, read the classics — Homer, Plato, Cicero, and Virgil — in the original Greek and Latin. Jefferson and his colleagues understood what we, even after witnessing the slaughterhouse of the twentieth century, have yet to learn: that history shows that government officials abuse their power for their own interests and that, to avoid the endless tyrannies of the past, they had to construct a political system which diffused power — not only among branches and levels of government, but between government and the people.

For instance, Jefferson believed it was of critical importance that the federal government and its courts not be the final judge of the extent of their own powers. However, as Woodrow Wilson correctly observed, u201CThe War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.u201D [91] Another Jeffersonian mechanism for dispersal of political power was the right to trial by juries that decide both the fact and the law (6th and 7th Amendments). Over time, however, the right of juries to decide on the law itself — jury nullification — particularly in cases where application of the letter of the law would produce rank injustice, was eviscerated by judges who thought nothing of overriding the clearly expressed views of attorney-founders Jefferson, Hamilton, Adams and John Jay. Thus, today’s courts are not your founders’ courts. The republican founders’ ingenious diffusion of power has been defused. [92]

My brother of the bar Jefferson, unlike today’s often timorous and obsequious lawyers, did not hesitate to criticize the federal judiciary:

We have made them independent of the kingdom itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.

In truth, man is not made to be trusted for life if secured against all liability to account.

From the citadel of the law, they can turn their guns on those they were meant to defend, and control and fashion their proceedings to their own will.

It has long been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary — an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

The Consequences of Politicized Courts

What conclusions can be drawn from this extended discussion of Nine University at Buffalo Law School Professors v. James Ostrowski and its underlying dynamics? First, if you go up against the local power elite, you may get slapped around. You might end up on trial for contempt in federal court even though, in Kafkaesque fashion, there is no accusation that you did anything wrong. If they can do this to a lawyer whose father is a retired judge, imagine what they can do to you. Second, if you litigate against the power elite, you will tend to lose. Only a fool would deny that this is because the power elite picks the judges. Finally, if in the course of such a suit you find fault with the court itself, with the government itself, you will get squashed like a bug. All of these consequences were predictable given the nature of the political machine and the politicized court system it dominates.

Politics in Buffalo is seamless; it pays no attention to the civics book delineation of three separate and independent branches of government. Politicians use the courts for patronage and power. Judges too often reciprocate by giving the connected and the powerful favored treatment and by treating political u201Ctroublemakersu201D harshly. This favoritism in turn strengthens the machine and allows it to fend off its enemies. In the battle to take Buffalo (or your town) back from the power elite, don’t expect any help from the legal command posts of society.

This discussion of judicial politics in Buffalo is admittedly disturbing. If I am right, judicial politics is merely a subset of politics per se, albeit a form of politics whose machinations are subtle and secretive. As we have seen, politics in Buffalo closely follows the Oppenheimer-Nock-Rothbard model: politics is the accumulation of wealth and power by the undeserving through non-economic means. Again, if I am right, this discussion casts grave doubt on the long-standing claims by political scientists, legal philosophers and judges themselves, that, given a monopoly on the provision of dispute resolution services, the state can and will provide justice for all. As we have seen, not even the prestigious federal courts are immune from self-serving and heavy-handed politics and from flouting their own highest legal principles.

This isn’t the time or place, and there isn’t the space here, to reconstruct the court system or re-invent the judicial wheel. What can be said is that merely by limiting government to its only proper function, protecting individual rights and adjudicating disputes, the entire atmosphere in the courts will immediately improve. With our entire society de-politicized, naturally the judiciary will tend to be less political as well. Judges will then tend to be drawn from Jefferson’s u201Cnatural aristocracyu201D [93] — an aristocracy of brains, integrity and accomplishment, not political pull. People like my father — straight-A student, president of his class in college, war hero at age 19, [94] getting a masters degree in law while working and raising a family, and, most importantly, incorruptible — will be sought out for high judgeships instead of being snubbed.

If the overall power of the state is shrunk accordingly, the powers of courts will also shrink as will the commensurate desire of special interest groups to influence their use of that power. If we eviscerate the liberal welfare state, the political machine which now plays the major role in installing judges, will expire, or at least shrink to insignificance. By doing nothing more than this, we will have gone a long way toward curing what is wrong with the courts.

Turning the Tables

In 1995, I was tried for contempt in federal court in Buffalo as a result of a motion that was made in 1993. Appeals and collateral legal proceedings lasted until 1999. Aside from the two judges directly involved, numerous other federal judges, trial and appellate, expressly or implicitly endorsed the proceedings. Numerous judges were given a chance to stop the madness or allow me to receive justice after the fact. Only one out of dozens spoke on my behalf and he was outvoted. So it is fair to say I was put on trial by federal court and was denied any form of redress, including attorney’s fees, by federal court. I was put on trial because I was helping a friend sue UB Law School. I was put on trial because a politically-connected law firm was so confident of its standing in federal court that it wasn’t worried about being sanctioned for filing a frivolous suit. I was put on trial because I properly asserted a claim of client confidentiality under the code of legal ethics.

Federal court put me on trial, and I had no choice but to submit because I had no influence over their court. Federal court put me on trial and caused me to spend an enormous amount of time, energy, and money defending myself. My personal and family life was disrupted and my law practice was severely damaged. There were many sleepless nights. I was forced to read drivel from a third-rate judge attacking my father, one of the finest lawyers Buffalo has ever produced. I was defamed behind my back by cowards!

In this essay, I have turned the tables around. I have put the federal court on trial. They too will be tried in a court they cannot control: the court of public opinion.

Can you fight u201Ccity hallu201D? I think you can. But if you fight city hall in city hall, you’re bound to lose. Fight them on your own terms, on your own turf, and in a manner and time of your own choosing. I did. The pen is mightier than the gavel.

The Machine and the Mafia

To grasp the true nature of the political machine, I find it helpful to draw an analogy to the Mafia. With apologies to von Clausewitz, [95] the Mafia is the continuation of politics by the same means less effectively applied. A mafia is a group of people who, perceiving themselves as inadequate to achieve their goals through production and trade (the market), band together to use unlawful force and fraud to increase their power and wealth at the expense of their betters, who, after all, have produced the very wealth the mafia seeks to purloin. The political class is like a mafia, except that, while the Mafia must resort to unlawful force and fraud, the force and fraud utilized by the political class has the sanction of the law.

The force used by the political class is not overt, since its potential is overwhelming and its subjects usually comply without resistance. The main mechanisms of force are taxation, penal codes, regulation, and eminent domain. People generally obey these directives because they fear being arrested, imprisoned, fined or worse. Is the Mafia so different? Its members rely mainly on fear and intimidation as well, only rarely resorting to a slaying outside a restaurant or inside a barber shop.

Thus, it cannot be denied that the political class uses force and the threat of force. What about fraud? The fraud used by the political class is of a more general nature than that used by the Mafia in its penny stock and telemarketing scams. Politicians lie about their capacity to use the state to improve peoples’ lives. Politics is the art of determining how organized force is to be used in society. Force is essentially a negative thing. It destroys things and prevents things from happening. Life, however, requires the production of positives such as wealth, knowledge, ethical values and social bonds. While politicians tell the people, oxymoronically, that government, above and beyond keeping the peace, can be a force for good, government cannot be that, since its only tools are negative such as taxation, regulation, and confiscation.

Politicians continually try to convince people that the impossible is true: that (lawful) violence and the threat of (lawful) violence can produce wealth, peace, happiness and social harmony.

Politicians lie, and voters delude themselves with those lies. Politicians lie because they are greedy for power; voters are seduced by those lies because they are greedy for other people’s money. If you gave a politician truth serum and asked him what he did for a living, he would quote Tolstoy:

I sit on a man’s back choking him and making him carry me and assure myself and others that I am sorry for him and wish to lighten his load by all possible means — except by getting off his back.

If you gave truth serum to those who vote for these liars and asked them why they vote as they do, they would quote Frédéric Bastiat, who described government as u201Cthat great fiction by which everyone tries to live at the expense of everyone else.u201D

Thus, the entire program of the politicians is a lie and a fraud. It is the greatest fraud of our time. It is false in general and it is false in every particular instance. Therefore, I have established that the tools of the political class, the political machine, are indeed like the Mafia’s — force and fraud. One difference: unlike the political machine, the Mafia doesn’t target spouses.

Nor should anyone be surprised by my comparing politicians to gangsters. The Godfather series firmly ensconced that truth into popular culture:

Michael Corleone: u201CMy father is no different than any other powerful man — any man who’s responsible for other people, like a senator or president.u201D

Kay: u201CYou know how nave you sound…senators and presidents don’t have men killed.u201D

Michael Corleone: u201COh, who’s being nave, Kay?

Moreover, organized crime and politics have intersected in Buffalo. [96] Buffalo’s mob boss, Stefano Magaddino, was one of the most powerful in the country and ruled Western New York rackets for 52 years (1922—1974). Along with Meyer Lanksy and Lucky Luciano and others, Magaddino invented the Mafia. [97] In a manner reminiscent of Don Corleone, local politicians including at least one Congressman would visit Magaddino in his funeral home office to pay their respects. And yes, they would call him u201CGodfather.u201D [98]

On one occasion, local judges were at a Buffalo bar when several Magaddino lieutenants were arrested for illegal gambling. [99] And how many cities can boast that one of their own politicians was caught in the 1957 raid at Apalachin? Buffalo can: Magaddino’s second-in-command, John C. Montana, a taxi company owner and former city councilman [100] from Buffalo. Take that, Chicago! To close the circle of Mafia, politics and unions, Montana attended the meeting with James V. Da Luca, Secretary-Treasurer of the local Buffalo Hotel & Restaurant Workers’ Union and four other union officials.

It is often thought that the Mafia competes with the state, each promoting its own protection racket. The truth is more complex. The Mafia exploits a variety of state programs and policies for profit. The Mafia, including the Buffalo mob, got its big start selling booze during Prohibition. After repeal, they went into illegal drugs. If these products had remained lawful, as they had with little fanfare for decades, the Mafia would not have grown so powerful. The same is true for gambling, a major source of revenue for the local mob. If our financially irresponsible politicians did not hypocritically feel the need to regulate private, consensual financial behavior, the Mafia would have been deprived of yet another huge source of revenue.

There are still other reasons why the Mafia became just another failed government program. Lord Acton said, u201Cpower corrupts,u201D which it certainly does. We might also add that power is corruption, power here defined as the use of force to prevent people from using their own liberty or property as they so choose. The Mafia has infiltrated or exploited government programs which gave some people arbitrary and illegitimate power over others. Unions are the prime example. The law gives unions monopoly power over businesses and, indirectly, over non-union workers. Predictably, the Mafia rushed into this lucrative opportunity, took over many unions and used that union power to make millions.

Other Mafia programs have included rigging bids for public contracts and purchases. In so doing, the Mafia exploited the weaknesses of bureaucratic control over large spending projects. For example, the New York Post reported on December 17, 2003, that u201Ca mob-connected central New Jersey plumber gouged the MTA (New York subway system), overcharging by as much as $10 million with the help of three crooked MTA officials.u201D Since, unlike private businessmen, these bureaucrats were not spending their own money, the Mafia was able to circumvent their rules at a cost to the taxpayer but not to the bureaucrats.

It is with respect to unions, however, where the analogy between the state and the Mafia becomes eerily close. Has the Mafia threatened to break people’s legs in order to gain and keep control over unions? Yes. What does the state do with respect to unions? It also threatens to use force against those who defy its rules giving special privileges to unions not possessed by the general public, that is, the ability to force others to bargain with them. Though it never gets that far, if a businessman defied a court order issued under labor laws, and resisted a federal marshal’s attempts to arrest him for contempt, he very well could get his leg broken — with a bullet. Yes, the Mafia got into the labor racket, but the feds created it in the first place.

The Buffalo mob declined in power after the death of Magaddino in 1974. Nevertheless, as late as the early 1990s it controlled a powerful local construction union whose national affiliate donated $4.8 million to the Democratic Party and Bill Clinton. [101] (We may justly wonder who was more embarrassed about this link, Clinton or the union?) It appears that the union between politics and the Mafia is unions.

The American Mafia would not have risen to power and wealth in Buffalo or elsewhere were it not for the rise of the modern u201Cprogressiveu201D state with its large budgets, extensive controls over the economy and labor markets and its hubristic attempt to regulate private morals. Along with Buffalo’s high taxes, the Mafia’s additional u201Ctaxu201D on Buffalo’s economy significantly contributed to the area’s decline.

The Road to Hell . . . .

Political bosses and machine politicians justify their behavior by saying they are serving the greater cause of liberalism. Of course they would say that. People have a deep-seated need to believe they are doing the right thing. Several questions remain, however. What is so morally ennobling about a belief in liberalism, based as it is on dubious emotions like greed, envy and fear? Do these men and women engage in self-serving machine politics to serve the cause of liberalism, or do they subscribe to liberalism so they can engage in self-serving machine politics? Only they can answer that question.

If liberalism is a good thing, and Buffalo has been governed by liberal politicians and policies these last 40 years, why has Buffalo declined so dramatically? Could it be because liberalism consists of robbing Peter to pay Paul, and divides the community into net winners and net losers, but rather stupidly allows the losers to move out of state? At least Stalin had the good sense not to let the victims of his policies or their money escape. Ultimately, machine politicians cannot escape culpability for the decline of Buffalo merely by citing their alleged good intentions. In the end, people are responsible for what they do. The politicians just happened to choose a philosophy that benefits themselves at the expense of their community. They maintained their program long after its failures were obvious to anyone not blinded by greed and power-lust.

Summary and Conclusion

In my youth, I was given a rare opportunity to observe Buffalo politics at close range. I didn’t like what I saw. A small group of people, tightly organized, had seized the reins of political power and used that power to enrich themselves and their allies. They treated all agencies of government, even the most hallowed, the judiciary, as mere political patronage to be exploited to maintain and expand the machine’s power. Since the goodies handed out by the machine come directly or indirectly from the private economy, the amount of wealth extracted from the economy increased year after year. This gradually drove out or shut down industry and business. The machine’s powers never waned, though, as they drew new strength from outside subsidies and faced an ever-shrinking number of persons of independent means and minds who could oppose them.

Looking back on it all, I now see that I have been battling the machine, in one form or another, in one manner or another, for 28 years. So far, while I have won a few skirmishes, the machine has won the big battles. At the same time, the machine has been at war with the people of Buffalo. The machine has won all those battles. They have done quite well for themselves, but left the usual costs of war: broken lives, shattered dreams, thousands of exiles.

The machine has destroyed Buffalo with the efficiency of a modern air force. The machine’s policies and programs have left the inner city and industrial areas looking like a war zone with abandoned and decaying housing and factories. At night, some neighborhoods become war zones, thanks to young men who in earlier years would have found work in the factories. They ply different trades now.

In a war, however, the only thing that matters is who wins the last battle. In recent months, I have detected the beginnings of a major change in Buffalo. I am beginning to hear people say things about Buffalo politics that I have been saying for decades. Is the last battle imminent?

My exposure to libertarian ideas, particularly those of Murray Rothbard, finally gave me the analytical tools I needed to understand what went wrong in Buffalo and why. As predicted in the Austrian theory of economics, perfected by Rothbard, Buffalo became an economic powerhouse around the year 1900 in an era of relative laissez-faire. With no federal income tax and government’s share of the economy at less than ten percent, there was an enormous amount of capital available for investment in Buffalo’s burgeoning heavy industry.

What the uninformed all along the political spectrum do not grasp is that wealth can be increased only by the investment of financial, physical or human capital. All government action, above and beyond mere peacekeeping and dispute-resolution, destroys or reduces economic and human capital and reduces the incentive to create such capital. Big Government makes us poorer. Exhibit u201CAu201D for that proposition is Buffalo, New York, which in the last one hundred years went from laissez-faire capitalism to Rust Belt welfare state; from economic dynamo to basket case and laughing stock on late night talk shows.

As noted earlier, while the growth of government gradually damages the economy, the remaining market element continues to produce enough wealth to avert that level of desperation needed to drive radical change. Is there any escape from this treadmill? Is Buffalo’s only hope for change that we first endure a Great Leap Forward [102] into full socialism with its resulting poverty, starvation, and despair? Wouldn’t it be easier to read about Stalin and Mao and Pol Pot than to live under them? Talk about political bosses! Leaving aside that unlikely and unpleasant scenario, unless the people of Buffalo and Erie County wake up, they and their children and their grandchildren will face death-by-a-thousand-cuts economic torture at the hands of the ruthless local political machine for decades to come.

Let me close on a positive note. Though Buffalo, once a world-class economy, has fallen behind, the world has been slow to grasp the true cause of prosperity — individual liberty. Other cities, regions and countries have moved ahead of Buffalo merely because they are slightly less unfree than we are. Neither history nor geography nor present economic conditions places a limit on our future. If we can stop the political class from siphoning off our wealth, economic and human capital will flow in so fast that the only problems will be what to do with all that wealth and all those talented people.

Ironically, it is the radical nature of my vision that gives Buffalo a chance to leap ahead of the competition. Sloughing off the failed but comfortable status quo will take courage and daring, rare commodities in human affairs. That is why philosopher Brand Blanshard called courage the u201Cbest loved virtue.u201D We admire courage, Blandshard wrote:

[B]ecause it is the antidote to the emotion that is at once the deepest, the most universal, and the most disagreeable known to man, the emotion of fear.

Presently, Buffalo is mired in mediocrity, stagnation and fear. There is fear of change, fear of new ideas, and fear of freedom, which is, in the end, fear of life itself. This fear is continually exploited by the ruling elite, which tells us: everything is fine; everything is under (our) control. Sell us your political souls and we’ll take care of you. But the last 40 years say otherwise: the political elite take care of themselves; to hell with everyone else.

The power elite controls the present. They have built a seemingly invincible Berlin Wall around our freedom. The future, however, will belong to those who have the courage and daring to choose individual freedom and the free market. The future will belong to those who have the insight, the foresight and the courage to say: u201CPolitical class: dismissed!u201D

Notes

[1] Ludwig von Mises was the economist who predicted the fall of communism 69 years in advance. See, "Die Wirtschaftsrechnung im Sozialistischen Gemeinwesen" [Economic Calculation in the Socialist Commonwealth]. Archiv fr Sozialwissenschaft und Sozialpolitik. 47 (1920) 86—121. Translated into English by S. Adler and reprinted in Collectivist Economic Planning (1935). Reprint of S. Adler translation with a Foreword by Yuri N. Maltsev and Introduction by Jacek Kochanowicz. Auburn, Ala: Praxeology Press of the Ludwig von Mises Institute (1990).

[2] Humphrey Bogart’s character in The Caine Mutiny.

[3] For a New Liberty (1978), p. 318—319 (emphasis in original).

[4] In 1976, my father was one of two out of eight state judge candidates rated u201CA-Superioru201D by the bar association. He was later appointed to the New York Judicial Conduct Commission by two different Chief Judges and has a building named in his honor in Washington, D. C. across the street from the Supreme Court.

[5] December 10, 1973.

[6] u201CUrban Political Machines: Taking Stock, PS Online, September, 1999.

[7] Cf. Franz Oppenheimer, The State: Its History and Development Viewed Sociologically (New York: Vanguard Press, 1926); Nock, Our Enemy, The State (Tampa, FL: Hallberg Publishing Corp., 2001); Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, N.J.: Humanities Press, 1982), pp. 161—72.

[8] Nock, Our Enemy, The State, pp. 59—60 (emphasis in original).

[9] Buffalo Evening News, Aug. 28, 1974, p. 1.

[10] These days, it is no longer necessary for the political class to engage in illegal graft. The state now has so much power over the economy that its members can satisfy their greed lawfully. For example, before a recent scandal brought Adelphia Communications down, the Corporation was slated to receive a public subsidy of about $100 million to build an office complex in downtown Buffalo. There is no need to steal illegally when you can do so legally.

[11] Cf., F. A. Hayek, The Road to Serfdom (University of Chicago Press), 50th Anniv. Ed. 1994, Chapter 10 — u201CWhy the Worst Get on Top.u201D

[12] E.g., Mancur Olson, Power and Prosperity: New York: Basic Books (2000), p. 93—94.

[13] For an exhaustive study concluding that Buffalo’s large Polish-American population received little in return for their loyal support of the Irish-led Democratic machine, see Carl Bucki, u201CA Stacked Deck: Frustration Politics in Buffalo’s Polish Community,u201D Senior Honors Thesis, Cornell University, 1974.

[14] R. Wolfinger, u201CWhy Political Machines Have Not Withered Away and Other Revisionist Thoughts,u201D 34 The Journal of Politics 365, 369 (May 1972).

[15] John Locke, The Second Treatise of Civil Government (1690).

[16] June 17, 1968, 1, 30.

[17] Wolfinger, supra at 368.

[18] u201CMachine Politics: Old and New,u201D in American Urban History, ed. A. Callow (New York: Oxford University Press, 1973), p. 268.

[19] Stone, supra.

[20] There are a small number of people, with no direct financial stake, who view politics as a recreational or social activity; they enjoy it for its own sake. They are, however, few in number and do not change the analysis here. In fact, such political hobbyists tend to be liberals.

[21] Ludwig von Mises, Human Action: A Treatise on Economics (Contemporary Books, Chicago, 3rd rev. ed. 1966), p. 859.

[22] See, Keith E. Bonn, When the Odds Were Even: The Vosges Mountains Campaign, October 1944—January 1945 (Presidio Press, Novato, California). About the Campaign, Lt Col Chris Anderson, USAF, writes:

From a historical perspective, the American offensive into the Vosges is significant. For the first time in history, an army failed to defend these mountains. When the odds were even, the Americans outfought the Germans because of superior training, leadership, and overall tenacity.

Maj James Gates, USAF adds: u201CThe terrain, weather, and enemy strength favored the Germans, yet US troops successfully overcame these disadvantages to defeat a battle-hardened and tenacious foe.u201D

[23] Quoted in Justin Raimondo, An Enemy of the State (Prometheus Books: Amherst, N.Y., 2000), p. 102.

[24] The technical reason why the spectrum is gibberish is that it is not based on one parameter the quantity of which is the criterion for placement along the spectrum.

[25] See, Joseph R. Stromberg, u201CTensions in Early American Political Thought,u201D The Freeman (May 1999, Vol. 49, No. 5).

[26] See, Srdja Trifkovic, u201CFDR and Mussolini: A Tale of Two Fascists,u201D Chronicles, Aug. 2000.

[27] Warren Vieth, u201CIraq on the Capitalist Frontier,u201D LATimes.com, June 9, 2003.

[28] Ludwig von Mises, Socialism: An Economic and Sociological Analysis (Liberty Classics: Indianapolis, 1981), p. 112, et seq.

[29] In Human Action, Mises incisively analyzes the relationship between capitalism and insecurity: u201CIt is certainly true that the necessity of adjusting oneself again and again to changing conditions is onerous. But change is the essence of life. In an unhampered market economy the absence of security, i.e., the absence of protection for vested interests, is the principle that makes for a steady improvement in material well-being.u201D 3rd Rev. ed, p. 852. (Emphasis added).

[30] Power and Prosperity: New York: Basic Books (2000), p. 98.

[31] R. Wolfinger, supra at 368.

[32] See, Hans-Hermann Hoppe, Theory of Socialism and Capitalism (Kluwer 1989).

[33] Buffalo News, Dec. 22, 2002, p. C6.

[34] Which are a violation of equal protection of the laws.

[35] Source: Tax Foundation.

[36] u201CThe Great Society: A Libertarian Critique,u201D in The Great Society Reader: The Failure of American Liberalism, edited by Marvin E. Gettleman and David Mermelstein (New York: Vintage, 1967).

[37] u201CThe Case Against the Fedu201D (Ludwig von Mises Institute, 1994) pp. 86—88.

[38] F. Walter, u201CGrover Cleveland and Buffalo,u201D (Buffalo and Erie Co. Historical Society, Vol. XI, 1963).

[39] Id. at 7.

[40] Id.

[41] Reassessing the Presidency: The Rise of the Executive State and the Decline of Freedom (Mises Institute, 2001), p. xix.

[42] See, Mark Goldman, City on the Lake, (Prometheus Books, 1990), p. 167.

[43] Newsweek, Aug. 15, 1955.

[44] December 31, 1957, p. 1.

[45] J. Thompson, et al, u201CToward a Geography of Economic Health: The Case of New York State,u201D Annals of the Assoc. of American Geographers (March 1962), pp. 1, 17.

[46] Others blame Buffalo’s brown fields, but surely they are a symptom of decline, not its cause. Companies on the decline whose capital is dwindling will naturally tend to neglect to maintain their properties. At the same time, economic decline reduces property values, making it cheaper to abandon industrial properties than to clean them up. Conversely, thriving economies bid up the price of land, encouraging owners to keep it free of contaminants that might reduce its utility and market price.

[47] See, Jeffrey Tucker, u201CThe Marshall Plan Mythu201D Free Market, September 1997, Volume 15, Number 9 (also available online).

[48] G. Hooks, L. Bloomquist, u201CThe Legacy of World War II for Regional Growth and Decline: The Cumulative Effects of Wartime Investments on U. S. Manufacturing, 1947—1972,u201D Social Forces, Vol. 71, Issue 2 (Dec. 1992), pp. 303, 326 (among cities, Buffalo was the fifth biggest u201Cwinneru201D of defense largesse resulting from the War).

[49] See, H. A. Scott Trask, u201CThere is no Third Way,u201D Mises.org, Jan. 6, 2002.

[50] See, W. Frey, u201CCentral City White Flight: Racial and Nonracial Causes,u201D American Sociological Review, Vol. 44, Issue 3 (Jun., 1979), p. 425.

[51] High Hopes: The Rise and Decline of Buffalo, New York at 286—288.

[52] See, Neil Kraus, Race, Neighborhoods and Community Power: Buffalo Politics, 1934—1997, pp. 97—98.

[53] Id. at p. 113 (Kraus).

[54] Alex F. Osborn, Buffalo Evening News, Dec. 31, 1957.

[55] Kraus, supra at pp. 49—50.

[56] The percentage increases for Buffalo and N. Y. are somewhat overstated because of an apparent increase in state subsidies to the city since 1960, an increase that is duplicated in the statistics.

[57] For example: excessive personal injury verdicts against deep pocket businesses and bias in favor of tenants and against landlords, which, ironically, actually harms tenants in the long run. See, J. Ostrowski, u201CFree the Landlord,u201D Free Market, April 1993.

[58] F. Romo, M. Schwartz, u201CThe Structural Embeddedness of Business Decisions: Migration of Manufacturing Plants in New York State, 1960 to 1985,u201D American Sociological Review, 1995, Vol. 60 (Dec.: 874).

[59] Source: Business First Top 25 Lists, 2001.

[60] First Inaugural Address, emphasis added.

[61] Bethlehem continued to maintain a small coke oven and a galvanized steel operation until 2003.

[62] Human Action, supra at 779.

[63] Economics in One Lesson (Arlington House: New York, 1979), p.143.

[64] Studies in Economics No. 7, Institute for Humane Studies (1978).

[65] Human Action, supra at p. 858.

[66] Carla T. Main, u201CA Stench Grows in Brooklyn,u201D New York Post, March 10, 2003, p. 25.

[67] Kern v. Clark, (2nd Cir. June 2, 2003).

[68] I have no objection to affirmative action in the sense of seeking out qualified applicants from groups previously overlooked.

[69] Based on my observance of their performance and the publicity that accompanied their appointments.

[70] They also had previously served on that committee together for the purpose of filling a prior vacancy on the bench.

[71] 1872—1961, U. S. Court of Appeals, Second Circuit (1924—1951), co-founder, American Law Institute.

[72] Democracy: The God that Failed, Transaction Publishers: New Brunswick, 2001), p. 15.

[73] Murray Rothbard, For a New Liberty, (Collier Books: New York, rev. ed. 1978), p. 67.

[74] See, Henry Mark Holzer, Sweet Land of Liberty? (Costa Mesa, CA: The Common Sense Press, Inc., 1983).

[75] Sourcebook of Criminal Justice Statistics, 2000, pp. 411—412.

[76] FBI Press Release, Jan. 14, 1998.

[77] Id.

[78] New York Post, Jan. 26, 2002.

[79] New York Times, April 25, 2003.

[80] See, the Buffalo News, Sept. 26, 2003 (editorial).

[81] u201CLocal judge bypassed for state highest court,u201D Buffalo News, Nov. 5, 2003.

[82] U. S. Constitution, Article III, Section 1.

[83] u201CUse of Force by Police: Overview of National and Local Datau201D (National Institute of Justice, 1999), p. 5.

[84] u201CPolicing and Homicide, 1976—98: Justifiable Homicide of Felons by Police and Murder of Police by Felons,u201D Bureau of Justice Statistics (2001).

[85] u201CShielded from Justice: Police Brutality and Accountability in the United States,u201D 07/98.

[86] See Chapter 12 — u201COur Urban Policies are a Real Riot.u201D

[87] R. Peters, u201CCombat in Cities: The LA Riots and Operation Rio,u201D July 1996, Foreign Military Studies Office.

[88] We often forget the costs of the initial war that created the state in the first place, as well as the costs of the state’s constant preparedness to ward off enemies foreign and domestic to keep its grip on power.

[89] A Theory of Socialism and Capitalism (Kluwer 1989).

[90] If you read or hear about people attacking my analysis, they will most likely be members of legal special interest groups that benefit from the current judicial regime.

[91] Constitutional Government in the United States, p. 178.

[92] See, J. Ostrowski, u201CThe Rise and Fall of Jury Nullification,u201D 15 Journal of Libertarian Studies 89 (Spring 2001).

[93] Letter to John Adams, October 28, 1813.

[94] He was awarded a medal for his efforts on December 25, 1944, in risking his life to delay a surprise German advance. u201CMany lives in his withdrawing company were saved . . . u201D Regiment of the Century — the Story of the 397th Infantry Regiment of the 100th Infantry Division (1945), p. 195.

[95] u201CWar is the continuation of politics by other means.u201D

[96] Not to mention the U. S. Army employing Lucky Luciano in Sicily and alleged Anti-Castro CIA-Mafia ties during the 1960s.

[97] Richard Lindberg, u201COrigins and History of the Mafia u2018Commission’u201D (Search International, Inc. 2001; published online).

[98] Joe Griffin, Mob Nemesis: How the FBI Crippled Organized Crime (Amherst: Prometheus Books, 2002, p. 67).

[99] Id. at 84—85.

[100] Also, a former member of the zoning board and delegate to the New York State Constitutional Convention. See, A. L. Reuter, u201CReport on the Activities and Associations of Persons Identified as Present at the Residence of Joseph Barbara, Sr., at Apalachin, New York, on November 14, 1957, and the Reasons for the their Presenceu201D (Commissioner of Investigation, State of New York, April 23, 1958), p. 41.

[101] E. Methvin, u201CA Corrupt Union and the Mob,u201D Weekly Standard, Aug. 31, 1998.

[102] This is what Mao called his brilliant idea to bring modernization to China. According to the BBC, u201CThe Great Leap Forward was held responsible for famine in 1960 and 1961. Twenty million people starved, and Mao Zedong withdrew temporarily from public view.u201D

James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

Permit me to digress into a discussion of the meaning of political consent and its withdrawal. I am not saying that the American people ever explicitly consented to be ruled by the regime on the Potomac, or that they are parties to some mysterious Social Contract that implies their consent. That is all utter nonsense and propaganda. I know I never consented to be ruled by a regime that I have strongly opposed since my teenage years. Nor have I ever signed a Social Contract allowing them to rule over me. I’d be a jackass if I had.

To the best of my knowledge, no living American ever signed a contract to be ruled by the creepy politicians in DC. There are people long dead who signed a proposed Constitution and there are 11791 people long dead who voted at state conventions to ratify the Constitution. However, no living American ever agreed to be bound by the consent to be governed apparently given by people long dead that they did not know.

Libertarian legal scholar Randy Barnett has brilliantly refuted all possible theories of how citizens can be found to have implicitly consented to be ruled when it is perfectly obvious that they have not explicitly consented. See, Restoring the Lost Constitution (2004), pp. 11 et seq.

Voting does not imply consent as we never get to vote on the legitimacy of the regime itself. And what if you vote against the regime as I have done in every election since I was allowed to vote? How in the world can that be construed as consent? Well, I played the game. Okay, so if I stop voting, I have withdrawn my consent? That’s a bargain! I will stop voting, withdraw my consent and the tax bills will cease. Hurray! Yeah, but you could have played the game, they will say. Barnett replies: "It is a queer kind of u2018consent’ where there is no way to refuse one’s consent." (p. 16). Barnett goes on to demolish all the familiar rationalizations for why average citizens have "consented" to be governed by political thugs in DC:

1. Residency — this argument "presupposes that those who demand that you leave already have authority over you." (p. 18) It’s a circular argument.
2. Acquiescence to the laws. "Does one really manifest a consent to obey the commands of someone much more powerful simply because one does not physically resist the threat of violence for noncompliance?" (p. 21)
3. Acceptance of the regime. This proves too much, according to Barnett. Even oppressive regimes have the passive acceptance of their people in the sense they do not actively revolt.
4. Acceptance of benefits. This is the most common argument made by liberals these days. With respect to the alleged benefits of the state’s legal system, Barnett simply notes that there can be no consent since there is no way to opt out. The argument from receipt of tangible "benefits" also fails. These are paid for by compulsory taxes you never consented to. Only if such things as roads, schools, and fire protection were funded voluntarily, could you be said to have consented to the regime by using them. That never happened of course. Also, again, to consent, there must be a reasonable way not to consent. If I refuse to use the streets, I die of starvation. It’s a distorted view of consent that leads to the "argument": join us or die!

Thus, we the living never consented to the current regime in the first place in any meaningful way. Thus, what I am proposing is this: we need to make explicit what is already implicit. We need to announce that we do not accept the legitimacy of the regime. This regime is blatantly, openly and proudly violating our natural rights. It is not legitimate within the clear understanding of our founding document, the Declaration of Independence. Thus, you have no moral obligation to support it. Withdrawing moral support for the regime is critical since public support is the very basis of the regime’s power. That is why government schools are so critical to the maintenance of the regime’s power. And that is why even totalitarian regimes have elaborate propaganda operations.

I emphasize again that I do not advocate civil disobedience. Why engage in risky and costly law-breaking when we can take America back through lawful and peaceful means?

If the regime begins to unambiguously violate its own constitution, then it becomes the practitioner of civil disobedience and the people will have a moral and legal right to resist as I explain further in Chapter 20.

Note

1. In 14 states including Vermont.

James Ostrowski is an attorney in Buffalo, New York and author of Government Schools Are Bad for Your Kids: What You Need to Know and Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

u201CHe will win who knows when to fight and when not to fight.u201D

~ Sun Tzu

There are three basic approaches to changing public policy: politics (elections and lobbying), direct citizen action and violence. We can quickly rule out violence as morally repugnant, inefficient and unpredictable.

Political action has rarely in human history caused government to shrink in size and power. The natural tendency of government is to grow and expand its powers. The events of 2008—2010 illustrate that. Over time, it will tend to tax and spend more, hire more people and assume more power over our lives, liberty and property. Government policies change continually but if you look closely, it is almost always in the direction of bigger government. If you favor bigger government, you really don’t have to do anything. Just sit back and enjoy the show. By the natural laws of politics, governments will tend to grow. If you check back in five years, it is highly likely that the government will be bigger and more powerful. Government in America has grown enormously since about 1917, the start of American involvement in World War I. No coincidence there; war grows the state.

By its nature, the state is the means by which some people can impose the costs of achieving their goals onto unwilling others. As Frdric Bastiat put it, u201CGovernment is the great fiction, through which everybody endeavors to live at the expense of everybody else.u201D The desire to impose costs on others is virtually limitless. Thus, governments tend to grow over time.

There are five main reasons for this which are, unfortunately, structural features of political life:

1. rational apathy — the incentive some people have to increase the size of the state outweighs the incentive the rest of us have to fight them;
2. government control over political ideas — the state uses its control over schools and other idea-disseminating institutions to propagate support for further government growth;
3. government creates its own demand — because the state’s various interventions into the market economy always fail (e.g., health care), ironically, they increase the demand of the uninformed majority for even further interventions to fix the problems caused by the prior interventions;
4. the productivity of the mixed economy — given the inherent tendency of the state to grow, only extreme dissatisfaction among the populace will rouse them to act; however, even a partially free market produces enough wealth to mollify the people;
5. government has a monopoly on the use of legal force — government grows because it can. Given the universal human desire to accomplish goals with the least possible exertion, politicians have an irresistible urge to use the state’s powers to continually expand the amount of wealth they control. Anyone who objects can always appeal to the politicians’ judges and can expect to be told, u201CGet lost!u201D

Since it is in the structural DNA of government to grow, it is nearly impossible to persuade its officials to reverse that tendency or to persuade the voters to elect candidates who intend to shrink government. The last time a mass political movement was able to achieve power and shrink government was Thomas Jefferson’s velvet revolution of 1800!

Ron Paul’s campaign for president in 2007—8 showed how difficult it is to elect a candidate who favors smaller government. In spite of over 100,000 campaign workers and $30,000,000 and an articulate candidate with 20 years in Congress and a sterling personal life and record of accomplishment, he received less than ten percent in every Republican primary election. The system is thoroughly stacked against anyone who would attempt to reform it from within.

The main function of national elections in this country is to give the people the illusion that they are in charge and can change policy whenever necessary. However, the basic policies never seem to change. Elections allow people to blow off steam and thus serve as a safety valve for the regime that allows them to rule us for another four years.

With respect to the upcoming congressional elections this year, a Patriot candidate would need as much as two million dollars to run a competitive race for the House. Very few have that kind of money or can raise it. More likely, the Republican challengers this year will be party loyalists funded and controlled by the plutocrats and GOP establishment.

I know these are harsh realities to accept. They contradict what we have been taught in school and told to believe in endless TV ads urging us to vote and participate in the political process. However, to win this fight, you will have to be as clear-eyed as our adversaries are about the realities of power politics. That’s how the political class got all that power in the first place: by seeing things clearly and not being fooled by myths and clichés.

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

This book is for people who have concluded that America is in serious trouble because its government got too big. I make no effort to prove that here. I and many others have done that at length elsewhere. It is simply an assumption of the book. So, this is a book for libertarians, Paulians, tea party people, limited government conservatives and anyone else who accepts the above proposition. Let’s call us the liberty movement.

Being a libertarian for thirty years, Ron Paul’s election lawyer in New York State in 2007—8, and a leader of the tea party movement should give me the credibility to say what needs to be done now. I am not some Johnny-come-lately to the cause or a paid political hack for any party or plutocrat. I received no outside support to write or publish this book. I’m a working-class lawyer who lives with his wife and two children in a three-bedroom home in a working-class neighborhood in North Buffalo.

The impetus for this book was my fear that the liberty movement is being set up for a big disappointment in 2010 and 2012. While public opinion is turning our way and millions of grassroots activists hit the streets to protest big government last year, the odds are that the same GOP establishment whose free-spending ways and nation-building wars set the stage for Obama, will be choosing the candidates for Congress this year and will choose the nominee against Obama in 2012. These folks are unapologetic about their decades of support for big government policies, yet they will cleverly say the things their consultants tell them to say to appeal to the liberty movement.

There will be elation on election night this year, but then the sellouts will occur just as they did during the Reagan years, after the 1994 Republican u201CRevolutionu201D and after the Republicans achieved total control of the federal government during the Bush years. I can see this happening because I have watched politics closely for many decades and I know how GOP operatives think and act.

Please understand that I do not oppose political activity altogether. Since I am a political consultant for liberty movement candidates, that would be economic suicide! My point is that electoral politics should be engaged in with great selectivity, only when the candidate is golden, such as Ron Paul, and other circumstances dictate that the scarce resources of the liberty movement can be applied to great effect in a key race.

Instead, our primary focus should be on the numerous and highly effective methods of direct citizen action that have been neglected by our movement but which have been highly effective in other times and places. Many of the ideas I propose here will also make electoral success for the liberty movement much more likely.

In the realm of politics, the best chance the liberty movement has is not winning elections but convincing states and localities to stop cooperating with the federal government. I believe the Tenth Amendment Movement. as it is known, has great potential. Early on, I criticized this movement for too much talk — meaningless resolutions — and not enough action such as telling the Feds where they can put all their money with anti-federal strings attached. Here’s my post from March 10, 2009 on LewRockwell.com:

When words on paper have failed, add more words

That’s how I see the state sovereignty resolutions, at least those I have read. This Arizona resolution urges the federal government to start respecting the Tenth Amendment. I have news for the drafters. They think they are respecting the Tenth Amendment. Here’s what the resolution should have said if the supporters were really serious and not just chasing headlines or self-delusions. u201CAll state legislation enacted under threat of the withdrawal of federal funds, and all state legislation that facilitates the administration of unconstitutional federal programs is hereby repealed.u201D

I urge this movement to avoid direct confrontations with the Feds and instead use a more Zen-like approach: non-cooperation in all discretionary matters.1 For example, while the Feds, with the blessing of our post-New Deal rubber-stamp Supreme Court, can apparently enact any drug laws it so chooses, I am not aware of any legal obligation that states and localities have to waste their scarce resources on the Feds’ stupid drug war. The best way to end the drug war is not through lobbying Congress but by persuading key cites to stop wasting their scarce resources on a destructive and unwinnable war.

For the latest developments in the Tenth Amendment Movement, see Michael Boldin’s great website, TenthAmendmentCenter.com.

I am keeping this book concise to keep the cost down and make it available to a large readership. Therefore, please refer to my websites, PoliticalClassDismissed.com and FreetheChildren.US for further information and updates on direct citizen action in these times.

Note

1. I hinted at such a strategy in my 1998 article on secession. “Was the Union Army’s Invasion of the Confederate States a Lawful Act?” in Secession, State & Liberty, David Gordon, ed., (New Brunswick, NJ: Transaction Publishers, 1998).

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." His latest book is Direct Citizen Action: How We Can Win the Second American Revolution Without Firing a Shot. See his website.

The Best of James Ostrowski

Let’s begin at the beginning by pointing out a fact that is so obvious that it is almost entirely forgotten. It is taken for granted that, for the sake of peace, justice and order, the courts must have a monopoly on judicial power within the boundaries of their jurisdiction. Yet, the ability of today’s courts to achieve any of these values with the monopoly power they possess is subject to serious doubt. Even if justice implies a court system with the monopoly power to do justice, the converse is not true. The mere existence of monopoly judicial power does not imply that it will be used justly. Whenever that monopoly power becomes unhinged from true justice, as it did, for example, in Stalin’s Soviet Union or Hitler’s Germany, that monopoly judicial power thereby becomes a great evil. One suffering under Hitler’s or Stalin’s u201Cjudicialu201D edicts would have wished to have recourse to some judicial competition, to say the least.

Order is a term frequently used but rarely defined. The concept of order is substantially similar to the concept of peace. For example, when people use the term civil disorder, they are usually referring to riots and other forms of widespread acts of violence against persons or property. In another sense, order involves not merely peace, but the provision of some assurance that peace will continue and that disputes will be amicably resolved. However, what people want is not merely some reasonable assurance that disputes will be resolved, but that they will be resolved with at least a rough approximation to justice: the correct application of the right principles to the reasonably known facts. While the state in all its forms, even dictatorship, provides a means to resolve disputes, its capacity to resolve them justly is subject to serious dispute. Why should we think the state, even a democratic state, will resolve disputes justly?

An immediate and intractable problem arises. It is claimed that a state with a monopoly on dispute resolution powers is the very prerequisite of a civilized justice system. So such power is bestowed upon the state or seized by it. Now we have a situation in which, if one wants dispute resolution services, one must go to the state. What are the ramifications of this monopoly? Like any monopolist, the state will tend to charge more for its services than private arbitrators would. Moreover, since its revenue is guaranteed, and the courts have little incentive to attract or please its u201Ccustomers,u201D government courts have little incentive to incur the costs of producing justice: the intellectual, moral and physical effort required to achieve true justice. Thus, overall and in general, state-provided justice will tend to be expensive, time-consuming, and of relatively poor quality. There is the story of the local judge who, confronted with having to wade through hundreds of pages of summary judgment motion papers, instead lazily told the lawyers, u201CThere must be an issue of fact in there somewhere. Motion denied.u201D

The biggest problem, however, with government courts arises from the unusual nature of their product. Sure, a state monopoly car company would sell overpriced and poorly-made cars. A government monopoly over the law, however, is much worse. The product of the government courts is the definition of the legal rights and powers of all persons and institutions in society, including themselves and the government of which they are a part. Therein lies the problem. As Hans-Herman Hoppe argues:

u201CUnder the assumption of self-interest, every government will use this monopoly . . . to its own advantage. . . . Hence every government should be expected to have an inherent tendency towards growth.u201D [1]

Thus, government courts will tend to expand the rights and powers of the government, while shrinking the rights and powers of the citizenry. Individual Americans have only slightly more ability to halt this perpetual growth of the state than did their sad counterparts in Stalinist Russia or Nazi Germany, though, unlike them, we remain free to squawk about it, for the time being anyway. This theory is confirmed by history. The United States government has been growing steadily ever since 1776, with the reliable, continual and unsurprising endorsement of its own courts. Constitutions do not thwart this process since the courts themselves define what they mean. That is, the government resolves any dispute as to the extent of its own powers:

u201C[A]ny written limits that leave it to government to interpret its own powers are bound to be interpreted as sanctions for expanding and not binding those powers. In a profound sense, the idea of binding down power with the chains of a written constitution has proved to be a noble experiment that failed.u201D [2]

Thus, government courts, unconcerned about securing or satisfying customers, tend to be more concerned about looking after their own interests and the interests of their allies. They adopt, for example, elaborate and fairly inflexible rules of procedure, most of which seem designed to serve the needs of the court, not the litigants. Litigants are forced to hire expensive attorneys, usually specialists who know their way around in that particular court. Dispute resolution agencies which cannot monopolize business tend to adopt much simpler procedures. This banal example makes the larger point. Government courts, being monopolies, tend to serve their own interests, not those of the litigants, in all aspects of their work, from procedure to substantive decision-making. This lack of solicitude is the direct and inescapable result of the very monopoly powers we are told courts must have!

A further point: it is rarely remarked that government courts are subject to the same special interest group dynamic that plagues the other two branches of government. Most citizens want courts that mete out justice. Yet, a small group of people view the courts as a means to increase their wealth, power and prestige. Which group will tend to prevail over the other? We need only apply the concept of rational apathy that earlier led us to conclude that the fellow who wanted an easy job in a bureau would prevail over the citizen who wished to have lower taxes. That is, those who view courts as the means for securing high-paying, powerful and prestigious employment, or who regularly transact business in the courts — such as lawyers, large corporations, large institutions, and various legal special interest groups and political parties — have a far greater incentive to be involved in the process of selecting judges and determining court rules, policies and philosophies than the average citizen does. Thus, the courts will tend to reflect the views of the legal special interests rather than those of the general public.

Ideally, the courts should resolve disputes justly. Justice is not a meaningless abstraction; it can be defined. As I see it, justice is the resolution of disputes based on the application of the proper or correct legal principles to the knowable facts within a process that is speedy, cost-effective, and as simple as the circumstances permit. Most critical for our present purposes is the application of the correct legal principles. Will government monopoly courts tend to apply the correct principles of law consistent with justice? What gives government courts their cachet in the first place is not proof of their philosophic wisdom but, rather, the fact that they or their allies or predecessors have managed by political or military means to drive out the competition and establish a monopoly. It is not at all clear why the power to establish a monopoly of a good or service by means of political power or military force is proof of the ability of the monopolist to deliver a high quality product, in this case, justice. Quite the contrary. Justice and power are usually at odds. The whole point of justice is to restrain power. To rely on those adept at power politics to guarantee justice is, to paraphrase Oscar Wilde, to seek the triumph of hope over logic and experience.

If we define justice from a Lockean or Jeffersonian perspective as protection for the individual’s rights to life, liberty, and property, we may be skeptical about whether those who establish a court system by coercion, and seek to staff that system and thereby forcibly impose their legal principles on the entire country, will be at all solicitous of pacific Lockean or Jeffersonian legal principles. Governments tend to be founded and staffed not by apolitical or antipolitical libertarians or Jeffersonians but by power-hungry Hamiltonians who tend to have much more expansive plans for government beyond merely keeping the peace and recording property titles. Even if we assume that government monopoly courts were established with the best of intentions, like the other two branches of government, they quickly come under the control of the various special interests which seek to use the courts to unjustly advance their own welfare at the expense of others. For these reasons, in actual practice the courts have been absolutely hostile to Lockean/Jeffersonian/libertarian principles, as theory and common sense would have predicted. [3]

Turning to yet another problem with the justice system, we often evaluate its performance based on its ideals and rarely look at its actual performance. Because power corrupts, corruption, bribery, and favoritism regularly plague the state’s legal system. For example, in 1999, 580 people were convicted of u201Cofficial corruption, including thirty-two federal law enforcement agents.u201D [4] In 1998, 42 police officers in Cleveland were charged with conspiracy to distribute cocaine. [5] Other law enforcement agents accused of corruption that year included:

• Three Detroit police officers who were charged with conspiring to rob approximately $1 million.
• In Starr County, Texas, the sheriff, a justice of the peace, and five county jailers who were charged with bribery and conspiracy to commit bribery.

Nine current or former New Jersey police officers who were charged with racketeering involving protection of prostitution and illegal gambling. [6]

In January, 2002 a New York judge was arrested and charged with soliciting a $250,000 bribe. [7] In April of 2003, another New York judge was arrested with several others and charged with systematically fixing divorce and child custody cases. [8] Since all the parties to judicial corruption have a strong incentive to keep it a secret, is the known corruption merely the visible part of a giant iceberg?

In addition to overt corruption, there is a more sinister and largely invisible form of corruption that only close observers of the courts can discern. Judges in a democracy tend to be political animals. It matters not whether they are elected or appointed. The notion that appointed judges are apolitical is a fantasy entertained mainly by nave and self-appointed u201Ccourt reformers.u201D In truth, the politics involved in appointing judges is usually more covert and insidious than that involved in electing judges. The public rarely learns about why judges were appointed. Who pulled what strings? Who owed what to whom? Who will owe what to whom in the future? Even politically astute lawyers often do not know the answers to these questions.

The selection of elected judges to run for office is more transparent. They are generally lawyers associated with local political party organizations. They owe their loyalties to such organizations. However, they usually have at least some organic connection to the local community, else they would lack the support to be elected. Lawyers appointed to judgeships usually are more wedded to secretive elite circles. Is that why elites almost unanimously favor appointing judges? [9]

It has long been common knowledge that nominations for the elected position of state trial judge are often based on which candidates gave the largest contributions to the party. This fact is often cited by those who favor appointing judges. The partisans of appointing judges were surely deflated by the news that Governor Pataki recently appointed to the New York Court of Appeals a man who gave the Republican Party $219,000. [10]

It is a common belief that federal judges, who are appointed, are less political than state judges who are usually elected. However, every federal district judge in Buffalo started out as a politically-appointed United States Attorney or Assistant United States Attorney. Most had previously held or campaigned for state elective office. The local party chairmen are heavily involved in the selection of federal judges. The notion that judges who were themselves politicians, who are recommended by politicians (the party chairmen) to please their contributors, appointed by a politician (the President), and confirmed by still more politicians (the Senators), are or can be apolitical is one of the grand myths of American government. It is nonsense.

Whether judges are elected or appointed, they are all products of a political power structure. They therefore bring to the bench the general mindset of that power structure. They will tend to favor the interests of the power elite because of a similar outlook, loyalty, gratitude, or a desire for future appointments and other favors from the power brokers for themselves and their families and associates. Even federal judges, appointed u201Cduring good behavior,u201D [11] in effect, for life, tend to look out for the interests of the power structure whence they came. Perhaps from modest backgrounds, they are now accepted into elite circles. Having achieved judicial power, many become social climbers, seeking the acceptance and the numerous and subtle favors elite circles can now confer. While such judges may fairly adjudicate disputes between ordinary private persons, when such persons litigate against the state, or members of the power elite, they will tend to discreetly favor the elite. They are usually clever enough to disguise the favoritism.

Though my comments will probably cause consternation throughout the legal and judicial establishments, much of what I write was corroborated by one of New York State’s most distinguished jurists speaking at my father’s retirement dinner in 1991. He made a special point of noting that, in his decision-making process, my father had not been u201Cresult-oriented.u201D He was not like those judges who u201Cdid not have in mind the role they must play in administering justice.u201D That is, my father did not have a preconceived personal, political or philosophical axe to grind but sought out neutral justice in the cases before him. Yet, if this attitude was predominant in the courts, this jurist would not have considered it a notable virtue of my father’s career.

When a private person or entity has a dispute with the state itself, the dispute must be resolved by the state’s courts, else it ceases to be a state with the monopoly power to resolve disputes. We must, however, point out, in the spirit of the Emperor’s New Clothes, the long overlooked but obvious fact that such dispute resolution is a sham and mockery of justice. We are told that no one should be the judge of his own cause, yet the state, in disputes with its own citizens or subjects, is always the judge of its own cause. That this is not so because the state refers such disputes to its judicial branch is a silly and stupid argument. Similarly, I suppose, the next time I have a dispute with the United States I will insist that the dispute be resolved by an arbitrator selected by me.

In sum, the monopoly state provides no assurance that disputes will be resolved justly, merely that they will be resolved. Of course, all disputes at all times and all places are resolved one way or another. Yes, but at least the state does so without the use of force. This too is a myth, an illusion. The state resolves all its disputes by the use of force. Yes, but the force is so overwhelming that it does not have to be used, merely threatened. Even this is false. The police use force (beyond mere handcuffing) against half a million Americans each year. [12] In a typical year, 373 people are u201Cjustifiablyu201D killed by law enforcement officers. [13] Additionally, many innocent people and criminal suspects have been unjustifiably assaulted and/or killed by law enforcement agents.

A 1998 report by Human Rights Watch studied police behavior in 14 large American cities from 1995 through 1998. The report concluded:

Our investigation found that police brutality is persistent in all of these cities; that systems to deal with abuse have had similar failings in all the cities; and that, in each city examined, complainants face enormous barriers in seeking administrative punishment or criminal prosecution of officers who have committed human rights violations. Despite claims to the contrary from city officials where abuses have become scandals in the media, efforts to make meaningful reforms have fallen short. [14]

Yes, but at least only the state uses force — the disputants do not. Here, we are pretty far from the notion that the state does not use force to resolve disputes. But even here the state comes up short. Many law enforcement agents themselves are killed or assaulted. Each year, about 135 law enforcement officers are killed in the line of duty in the United States. Another 50,000 police officers are assaulted. Many judges, litigants, jurors, lawyers and witnesses involved in criminal and civil litigation have been murdered, assaulted or threatened by disgruntled parties.

Many episodes of social violence have resulted from a perception that government courts or law enforcement officers have not resolved disputes fairly or protected citizens adequately. In 1992, there was a major riot in Los Angeles sparked by dissatisfaction with an acquittal in a criminal trial. [15] The riot resulted in 54 persons killed, 2,383 injured, 13,212 arrests, and 11,113 fires. [16] A similar riot occurred in Liberty City, Florida, in 1980 after a jury acquitted four police officers charged with homicide.

The state’s abject failure to resolve conflicts without the use of force by itself, by litigants and by their sympathizers in the community is rarely acknowledged.

Thus, the state does not assure that disputes will be resolved justly and without using force. Many scholars define u201Cwaru201D as a conflict resulting in at least 1,000 combat deaths. By that measure, the United States justice system, the world’s most highly-touted, has a u201Cwaru201D every two years! All told, the number of people killed or injured as a result of the state’s enforcement of its laws is truly enormous. [17] This is far from the civilized, peaceful and orderly system of schoolboy legend.

The state itself exacerbates and stimulates conflict. Its legal system does this directly and its policies do this indirectly. As Hans-Hermann Hoppe and others have argued, the state’s policies, based as they are on coercion and confiscation, create a moral atmosphere which encourages the development of aggressive personalities. [18] Further, the state’s legal system is so complex that few understand it. This reduces respect for the law, diminishes its moral force, makes conflicts more likely and makes them more difficult to resolve. Inordinate complexity also allows judges to mask politically-motivated decisions in a dense fog of arcane legal reasoning. In most areas of human knowledge, increasing complexity is a sign of progress, an indication that greater information has been acquired. Not so with the law. The law’s crucial function is to guide people in their interactions with other people; to reduce disputes and misunderstandings; and to make possible the expeditious and just resolution of disputes that do arise. Further, since the ultimate foundation of respect for the law is community sentiment, the essential principles of law must be readily understood by most people. The modern statist legal system has failed in this critical function. No one fully understands it, not even the most brilliant lawyers and judges. Legal specialists do not even grasp all the intricacies of their own fields.

Thus, today’s court system consistently fails to deliver on its promise to provide peace, order and justice in exchange for the monopoly power it has been given. It resolves disputes slowly and expensively. Its legal principles are often inscrutable, its procedures arcane. Like the legislative and executive branches, it panders to special interests. [19] The courts have consistently put their stamp of approval on the ever-increasing growth of government and the resulting shrinkage of our liberties.

Much of today’s legal system consists of arbitrary rules arbitrarily applied. This is largely the result of the abandonment of the simple axioms of Lockean justice that animated the American Revolution: self-ownership and ownership of justly acquired property. Over the years, these axioms of justice were jettisoned for the wonderful, wacky world of virtually unlimited legislation by political hacks, endorsed by the judges they install and best described by one-time Buffalo newspaperman Mark Twain: u201CNo man’s life, liberty or property are safe while the legislature is in session.u201D Once you deny that individuals own themselves and their property, no rational or moral stopping point to government action can be conjured. The whim of the legislator and judge controls. That was not the original idea.

The founders were extraordinarily well-schooled in history and political philosophy. Jefferson, for example, read the classics — Homer, Plato, Cicero, and Virgil — in the original Greek and Latin. Jefferson and his colleagues understood what we, even after witnessing the slaughterhouse of the twentieth century, have yet to learn: that history shows that government officials abuse their power for their own interests and that, to avoid the endless tyrannies of the past, they had to construct a political system which diffused power — not only among branches and levels of government, but between government and the people.

For instance, Jefferson believed it was of critical importance that the federal government and its courts not be the final judge of the extent of their own powers. However, as Woodrow Wilson correctly observed, u201CThe War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.u201D [20] Another Jeffersonian mechanism for dispersal of political power was the right to trial by juries that decide both the fact and the law (6th and 7th Amendments). Over time, however, the right of juries to decide on the law itself — jury nullification — particularly in cases where application of the letter of the law would produce rank injustice, was eviscerated by judges who thought nothing of overriding the clearly expressed views of attorney-founders Jefferson, Hamilton, Adams and John Jay. Thus, today’s courts are not your founders’ courts. The republican founders’ ingenious diffusion of power has been defused. [21]

My brother of the bar Jefferson, unlike today’s often timorous and obsequious lawyers, did not hesitate to criticize the federal judiciary:

We have made them independent of the kingdom itself. They are irremovable but by their own body for any depravities of conduct, and even by their own body for the imbecilities of dotage.

In truth, man is not made to be trusted for life if secured against all liability to account.

From the citadel of the law, they can turn their guns on those they were meant to defend, and control and fashion their proceedings to their own will.

It has long been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary — an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

Politics is seamless; it pays no attention to the civics book delineation of three separate and independent branches of government. Politicians use the courts for patronage and power. Judges too often reciprocate by giving the connected and the powerful favored treatment and by treating political u201Ctroublemakersu201D harshly. This favoritism in turn strengthens the machine and allows it to fend off its enemies. In the battle to take your town back from the power elite, don’t expect any help from the legal command posts of society.

This discussion of judicial politics is admittedly disturbing. If I am right, judicial politics is merely a subset of politics per se, albeit a form of politics whose machinations are subtle and secretive. As we have seen, politics closely follows the Oppenheimer-Nock-Rothbard model: politics is the accumulation of wealth and power by the undeserving through non-economic means. Again, if I am right, this discussion casts grave doubt on the long-standing claims by political scientists, legal philosophers and judges themselves, that, given a monopoly on the provision of dispute resolution services, the state can and will provide justice for all. As we have seen, not even the prestigious federal courts are immune from self-serving and heavy-handed politics and from flouting their own highest legal principles.

[1] Democracy: The God That Failed, Transaction Publishers: New Brunswick, 2001), p. 15.

[2] Murray Rothbard, For a New Liberty, (Collier Books: New York, rev. ed. 1978), p. 67.

[3] See, Henry Mark Holzer, Sweet Land of Liberty? (Costa Mesa, CA: The Common Sense Press, Inc., 1983).

[4] Sourcebook of Criminal Justice Statistics, 2000, pp. 411-412.

[5] FBI Press Release, Jan. 14, 1998.

[6] Id.

[7] New York Post, Jan. 26, 2002.

[8] New York Times, April 25, 2003.

[9] See, the Buffalo News, Sept. 26, 2003 (editorial).

[10] u201CLocal judge bypassed for state highest court,u201D Buffalo News, Nov. 5, 2003.

[11] U. S. Constitution, Article III, Section 1.

[12] u201CUse of Force by Police: Overview of National and Local Datau201D (National Institute of Justice, 1999), p. 5.

[13] u201CPolicing and Homicide, 1976-98: Justifiable Homicide of Felons by Police and Murder of Police by Felons,u201D Bureau of Justice Statistics (2001).

[14] u201CShielded from Justice: Police Brutality and Accountability in the United States,u201D 07/98.

[15] See Chapter 12 — u201COur Urban Policies are a Real Riot.u201D

[16] R. Peters, u201CCombat in Cities: The LA Riots and Operation Rio,u201D July 1996, Foreign Military Studies Office.

[17] We often forget the costs of the initial war that created the state in the first place, as well as the costs of the state’s constant preparedness to ward off enemies foreign and domestic to keep its grip on power.

[18] A Theory of Socialism and Capitalism (Kluwer 1989).

[19] If you read or hear about people attacking my analysis, they will most likely be members of legal special interest groups that benefit from the current judicial regime.

[20] Constitutional Government in the United States, p. 178.

[21] See, J. Ostrowski, u201CThe Rise and Fall of Jury Nullification,u201D 15 Journal of Libertarian Studies 89 (Spring 2001).

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website.

The Best of James Ostrowski

Now we are engaged in a Second American Revolution, testing whether that corporate state, or any corporate state so conceived and so dedicated, can long endure. We are met on a great battle-field of that war, the internet. We have come to dedicate a portion of that field, the Libertarian Hall of Fame, as a final resting place for those generations of unsung heroes who gave their lives that the old republic might live again. It is altogether fitting and proper that we should do this. "Never was so much owed by so many to so few" with so little gratitude!

But, in a larger sense, we cannot dedicate — we cannot consecrate — we cannot hallow — this ground. The brave men and women, who struggled and died for liberty, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought for liberty have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have struggled for liberty in vain — that this nation, under God, shall have a new birth of freedom — and that government of the plutocrats, by the plutocrats, for the plutocrats, shall perish from the earth forever.

1. Plutocracy is "a type of government in which effective control rested with men of wealth who sought to use political means to increase their wealth." H. A. Scott Trask, "William Graham Sumner: Against Democracy, Plutocracy and Imperialism (PDF)," 18 Journal of Libertarian Studies (Fall 2004) 1, 10.

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website.

The Best of James Ostrowski

u201CSocialists, who were very active in the public school movement, began operating covertly in secret cells in America as early as 1829, before the word socialism was even invented.u201D

~ Samuel L. Blumenthal [1]

A quick history lesson

This isn’t a history book. It is a book about why you should take your kids out of government schools. Yet, misconceptions about history may discourage some readers from fairly considering the evidence and arguments that are to follow. What I ask is that you keep an open mind. Put your preconceptions aside and take a fresh look at this important subject. That will be easier to do after a brief review of the origins and nature of the government school as we know it today.

Were government schools established because private society and families refused to educate the children, resulting in lifelong ignorance and illiteracy? Were the motives of the reformers pure, selfless and concerned only with the well-being of the children? Surely, after these reforms were in place, school attendance rose, illiteracy disappeared and the quality of education vastly improved.

None of those things happened!

Contrary to myth, government schools were not immaculately conceived. The common mindset with respect to this or that government program is that it always existed and must always exist or the end of the world would be nigh. However, government schools did not always exist. Before compulsory, tax-supported government schools became the norm around 1890, American society had survived and thrived without them for over 200 years [2] while creating one of the most successful and literate societies in human history. The United States was well on its way to surpassing prior world leader Great Britain in per capita GDP before even half of its states adopted compulsory education. In fact, as late as 1900, when the United States had unquestionably become a world power, only u201C10 percent of teenagers were enrolled in high school,u201D [3] and just six percent graduated. [4]

James Tooley, a researcher who has studied the shift from private to government schools worldwide, writes:

u201CA broad range of evidence from Victorian England and Wales and nineteenth century America shows that near-universal schooling was achieved before the state intervened in education. The evidence suggests that the impact was to curb what was already flourishing―so much so that the picture of education in this and previous centuries seems far bleaker than it would have been had the private alternative not been suppressed and supplanted.u201D [5]

In sharp contrast, today in Western countries with compulsory free schooling, as much as twenty percent of the population is functionally illiterate. Schooling may be universal; education is not. [6] Even universal schooling is a myth. As many as ten percent of government students are absent on the average day, more than twice the rate of private school students. [7]

If government schools were not founded on necessity, what was their genesis? There were a number of political, religious and ideological forces behind the institution of compulsory government schools. Notably, none included the widespread failure of private schools and families to educate children.

Here is a quick review of the main historical roots of compulsory government schools in the Western World. It starts with Martin Luther who urged the German princes to u201Ccompel the people to send their children to schoolu201D in 1524, because u201Cwe are warring with the devil.u201D [8] Historian Murray Rothbard explains:

u201CThe Reformers advocated compulsory education for all as a means of inculcating the entire population with their particular religious views, as an indispensable aid in effective u2018war with the devil’ and the devil’s agents. For Luther, these agents constituted a numerous legion: not only Jews, Catholics, and infidels, but also all other Protestant sects. Luther’s political ideal was an absolute State guided by Lutheran principles and ministers. The fundamental principle was that the Bible, as interpreted by Luther, was the sole guide in all things. He argued that the Mosaic code awarded to false prophets the death penalty, and that it is the duty of the State to carry out the will of God. The State’s duty is to force those whom the Lutheran Church excommunicates to be converted back into the fold. There is no salvation outside the Lutheran Church, and it is not only the duty of the State to compel all to be Lutherans, but its sole object. Such was the goal of the initial force behind the first compulsory school system in the Western world, and such was the spirit that was to animate the system.u201D

John Calvin was the second major religious figure to endorse compulsory schooling. Like Luther, he did so to spread his religious doctrine by government force. And like Luther, he offered the political authorities this inducement: his schools would preach u201Cthe duty of obedience to rulers.u201D [9] That must have been music to the ears of the political authorities of the time.

Next comes Prussia. Under Luther’s influence, the militaristic and authoritarian Prussians pioneered compulsory education in Europe. [10] Rothbard writes,

u201CModern Prussian despotism emerged as a direct result of the disastrous defeat inflicted by Napoleon. In 1807, the Prussian nation began to reorganize and gird itself for future victories. Under King Frederick William III, the absolute State was greatly strengthened. His famous minister, von Stein, began by abolishing the semi-religious private schools, and placing all education directly under the Minister of the Interior. In 1810, the ministry decreed the necessity of State examination and certification of all teachers. In 1812, the school graduation examination was revived as a necessary requirement for the child’s departure from the state school, and an elaborate system of bureaucrats to supervise the schools was established in the country and the towns. It is also interesting that it was this reorganized system that first began to promote the new teaching philosophy of Pestalozzi, who was one of the early proponents of u2018progressive education.’ Hand in hand with the compulsory school system went a revival and great extension of the army, and in particular the institution of universal compulsory military service.u201D

The American u201Creformersu201D would later look to Prussia as a model for an American system. Professor Richard M. Ebeling summarizes how the Prussian model lives on today:

u201C[M]odern, universal compulsory education has its origin in the 19th century Prussian idea that it is the duty and responsibility of the state to indoctrinate each new generation of children into being good, obedient subjects who will be loyal and subservient to political authority and to the legitimacy of the political order. Young minds are to be filled with a certain set of ideas that reflect the vision of the official state educators concerning u2018proper behavior’ and u2018good citizenship.’

u201COver the generations, the content of what proper behavior and good citizenship means has changed, with changes in prevailing political and cultural currents in America, but the fact remains that the essence of the system was designed with that purpose in mind, and still operates on that basis. The parent is viewed as a backward and harmful influence in the formative years of the child’s upbringing, an influence that must be corrected for and replaced by the u2018enlightened’ professional teacher who has been trained, appointed and funded by the state. The public school, therefore, is a u2018reeducation camp’ in which the child is to be remade in the proper u2018politically correct’ image.u201D [11]

Compulsory education in America also came in through religious machinations. Scholar Diane Ravitch describes the pro-government school forces:

u201CThe reformers launched a campaign known as the common school movement from about 1830—1860. Its leaders were mainly aligned with the Whig Party and with organized Protestant religions. Neither Catholics nor Jacksonian Democrats liked the centralization aspects of this movement. . . . The common school movement shared the rhetoric and fervor of evangelical Protestantism; many of its leaders were ordained Protestant ministers who saw themselves as men with a mission.u201D [12]

Part of the mission was anti-Catholicism. One of the leading promoters of government schools u201Cinspired anti-Catholic riotsu201D in Baltimore. [13] u201CThe Nativists . . . believed that foreigners and especially Catholics were a threat to the American tradition of liberty.u201D [14] Ravitch writes that the reformers were u201Ceager to prevent Catholics from obtaining any public funding for their schools and require the use of the Protestant Bible in the public schools.u201D [15] The Protestant political majority was concerned that Catholics were being educated in their own religious schools. Thus, states began to subsidize Protestant schools with tax dollars. The u201Cmissionu201D was finally accomplished when the u201Cevangelical Protestants prevailed in their efforts to exclude Catholic schools from any participation in public funding. . . . the leaders openly and boastfully made anti-Catholicism the dominant theme of their attacks.u201D [16]

Later of course, the Protestants would be hoisted by their own petard when the Supreme Court banned prayer from the government schools in 1963. Those who live by politics shall perish by it. Just as Edward Ross had predicted in the 19th century: u201CWhile the priest is leaving the civil service, the schoolmaster is coming in. As the state shakes itself loose from the church, it reaches out for the school.u201D [17]

Murray Rothbard agrees with Ravitch:

u201CIt was the desire of the Anglo-Saxon majority to tame, channel, and restructure the immigrants, and in particular to smash the parochial school system of the Catholics, that formed the major impetus for educational u2018reform.’u201D [18]

Catholics of course stubbornly retained their own school system in response to the Protestants. So successful were these schools that states started to ban them. They survived this second concerted attack by the nativists including the Ku Klux Klan when the Supreme Court in 1925 held that parents had the right to send their children to private schools. [19]

For 150 years, subsistence-wage nuns, brothers and priests allowed the Catholic schools to compete by keeping tuition low. However, because of a sharp decline in their numbers, and their replacement by lay teachers paid at market rates, the government school system is finally beginning to realize its original mission: to knock off Catholic schools. The religious orders fought the good fight for 150 years. Without a major change in policy that levels the playing field, Catholic schools, with one-half of all private school students, will soon be in deep, deep trouble. Projecting out current trends, they will dwindle down to a few schools for the children of bankers, corporate executives and doctors that will hardly deserve the name u201CCatholicu201D which means universal.

Catholic Schools/Enrollment [20]

Year

No. of schools

No. of students

1960s

13,000

5,200,000

1990

8,700

2,500,000

2009

7,300

2,040,000

It is significant that the Whigs supported the movement towards government schools. As economic historian Thomas DiLorenzo has emphasized, they were the big-government party in an era of small government inspired by Jefferson. [21] Whig leader Henry Clay favored the American System of paper money inflation, pork barrel projects, and high tariffs, a way to subsidize big business. [22] It took many, many decades for the Whig’s big government model to be firmly established in America around 1917. Surely, fifty or sixty years of mandatory government schooling contributed to this sad development that plagues us to this day.

The Republicans, heirs to the Whig legacy of growing government, once in power, did all they could to impose government schools on the conquered South, according to John Chodes. His fine study, Destroying the Republic: Jabez Curry And the Re-education of the Old South, tells the story of how a former Confederate partisan became the tool of Northern foundation money in imposing government schools on the South. Not surprisingly, coercion was present as well since the Union made adoption of government schools a condition of u201Cre-entryu201D into the supposedly u201Cindestructible" Union. [23]

Robert Owen, an early socialist thinker and militant atheist wholeheartedly endorsed government schools as part of his utopian egalitarian scheme. [24] According to Samuel Blumenthal, u201Cto the Owenites . . . it was clear that national public education was the essential first step on the road to socialism and that this would require a sustained effort of propaganda and political activism over a long period of time.u201D [25]

Ideology usually masks underlying material interests and so it was with the government schools. Special interest groups were integrally involved in lobbying for government schools. The National Education Association, which gradually evolved into today’s trade union organization with the same name, was heavily involved in lobbying for compulsory schools. They endorsed the concept in 1897. [26]

So, government schools were not established out of any dire need for them but rather for a variety of crass religious, political and economic motives. They were not immaculately conceived but rather were born out of a toxic stew of religious absolutism, Prussian militarism, utopian socialist leveling and special interest greed and power lust.

Religious conservatives were hoodwinked into supporting a regime that would later turn against them:

u201CBy 1832 the religious conservatives had become more alarmed at the invasion of America by the Roman Catholics than by the heresies of the Unitarians. Someone had persuaded the conservatives that public education would be theirs to control once it became universal. And it was this kind of wishful thinking that permitted many conservative educators and ministers to support a cause so completely dominated by the liberals and so quietly manipulated by covert socialists.u201D [27]

This book is concerned with the current state of government schools compared to the available alternatives. That is the subject of chapters one through eight. Here, it will suffice to emphasize that government schools have failed in what could be considered their prime task. Many Americans are functionally illiterate. [28] Absentee and dropout rates are also high. Moreover, the output of government schools is generally mediocre and their performance has worsened as local citizen and parental control has given way to control by state and federal bureaucrats, unions and other special interest groups.

Coercion Versus Choice

Contrary to myth, society was filling the need for education remarkably well given the limited resources of the times. Government schools have been a poor replacement. Why?

The basic reason why private schools are superior to government schools is not mysterious, complex, or hard to grasp. Government schools are coercive institutions; private schools are voluntary. Due to compulsory school laws and laws making homeschooling difficult, students whose parents cannot afford private schools and find homeschooling impractical must attend a government school. [29] Taxpayers must pay for them. The rules and regulations governing government schools are rigid, inflexible and by definition, coercive. The teachers unions gain great power over the schools by application of federal and state laws granting them special legal privileges. Throughout the bureaucracy, due to civil service and union rules and laws, it is difficult for anyone to be fired. The schools must accept virtually all students whether they want them or not and whether or not they are fit for a classroom. Students and parents and even teachers who do not like the way the schools are run have few options for changing things.

The main point is that relations among people in government schools are coercive and involuntary. Those with legal power tell those without legal power what to do. Those without power have little choice but to comply.

In the government school system, there is a hierarchy of legal power. Roughly speaking, that hierarchy starts with the state education bureaucracy and proceeds downward to local schools boards, then to the superintendent, down to the principal, the teachers and finally, at the bottom of the pyramid, the students and their parents. On certain issues, the federal government sits at the top of the pyramid and can bark orders at even the state education departments. It is a top-down, coercive, bureaucratic model of decision-making.

What are the ramifications of such a structure of decision-making? Given the assumption of human self-interest, those with power tend to act in accordance with their own interests. They will of course rationalize this behavior by saying they are acting in the public interest or the student’s interest. However, since they have unilateral power over those below them in the pyramid, they can make their decisions without consulting them. They can so act even if the students and the parents are absolutely positive that their decisions are not in their interest. Their opinions simply do not matter. They are mere bystanders.

In sharp contrast, private schools are voluntary institutions. While (non-homeschooled) students must go to some school, they need not go to that school. And they can leave any time. The private school doesn’t have to admit them and can, more or less, kick them out any time. The principal can, subject to contractual severance pay, be fired anytime, or leave any time. The same is true with teachers. Though there may be private school teachers unions in some places, they do not have nearly the power of the government school unions to keep incompetent teachers on the job forever. Instead of being at the bottom of a pyramid of power, families who send their children to private school are on a horizontal plane with the school, itself. They are equal to one another in the power to sever the relationship.

What are the ramifications of the voluntary nature of the private school? There, you can’t merely say or think that your actions are beneficial to the other parties involved. They must actually be perceived as such by those parties. If not, they will walk away. The actions of the parents and students, the teachers and the administration must be mutually beneficial and perceived as such because no one can impose their will on the others for more than a very short period of time, say, till the next school year starts. Everyone must be on their best behavior at all times and no one has the power to exploit the others.

Power flows down

U. S Department of Education
↓
State Education Department
↓
School Board
↓
Superintendent
↓
Principal
↓
Teachers
↓
Parents/Students

The chart above illustrates how power flows down in the government school system. It turns out that information travels in the same direction as power. All top-down bureaucracies share this fatal defect: a shortage of valuable information flowing up to them from below. If you sit at the bottom of a pyramid of power, there is little incentive to pass upward information about the defects of the system or suggestions for improvement. As economist Thomas Sowell explains:

u201CFeedback which can be safely ignored by decision makers is not socially effective knowledge. Effective feedback does not mean the mere articulation of information, but the implicit transmission of others’ knowledge in the explicit form of effective incentives to the recipients.u201D [30]

Private schools receive valuable feedback about their operations from students and parents who expect their complaints to be taken seriously because they have the option of going elsewhere. Government schools are starved of such u201Ceffective knowledge.u201D

One way or another, all the defects of government schools described in this book arise out of the simple, fundamental and inescapable fact that government schools are top-down coercive bureaucracies while private schools are based on voluntary relations. As sociologist Rune Kvist Olsen puts it:

u201CHierarchies are, by their very nature, systems of domination, command and control. They are essentially systems and structures of institutionalized domination. They place people in ranks of superiors and inferiors. Positioning some people above others activates particular u2018drives’ or responses and steering mechanisms to arrange and legitimize someone’s control over others. Researchers have noted that whenever control, coercion, use of submission and domination in the name of rank and position occurs, hostile and destructive forms of interpersonal relationships emerge.u201D [31]

So much for the theory. Let’s look at the facts.

Notes

[1] Is Public Education Necessary? (TheParadigm Company: Boise, 1981), p. xii.

[2] Including the colonial period.

[3] Diane Ravitch, u201CAmerican Traditions of Education,u201D in A Primer on America’s Schools, ed., Terry M. Moe (Hoover Institution Press: Stanford, 2001), p. 13.

[4] Eric A. Hanushek, u201CSpending on Schools,u201D in A Primer on America’s Schools, supra at 72.

[5] Id. at 247.

[6] James Tooley, u201CEducation in the Voluntary City,u201D in The Voluntary City: Choice, Community, and Civil Society, ed. D. Beito, Peter Gordon & A. Tabarrok (Independent Institute, Ann Arbor, 2002), p. 223.

[7] Id.

[8] Quoted by Murray N. Rothbard, Education: Free and Compulsory (Ludwig von Mises Institute, Auburn, 1999).

[9] Id.

[10] Id.

[11] Sheldon Richman, Separating School and State: Future of Freedom Foundation (1994) at xiv—xv.

[12] Diane Ravitch, supra at 9.

[13] Id.

[14] Id. at 10.

[15] Id.

[16] Id. at 11.

[17] Separating School and State, supra at 49.

[18] For a New Liberty (New York: Collier Books, rev. ed 1978), p. 125.

[19] Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[20] Source: United States Catholic Elementary and Secondary Schools 2008-2009; The Annual Statistical Report on Schools, Enrollment and Staffing.

[21] See Thomas DiLorenzo, Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution―and What It Means for Americans Today, (Crown Forum: New York, 2008).

[22] Id.

[23] Algora Pub (2005), p. 141.

[24] Is Public Education Necessary, supra at 79—80.

[25] Id.

[26] Education: Free and Compulsory, supra.

[27] Is Public Education Necessary, supra at 134.

[28] James Tooley, supra at 223.

[29] Child labor is supposed to be a grave evil. How is compulsory schooling not child labor, with coercion added and the paycheck subtracted?

[30] Knowledge and Decisions (Basic Books: New York, 1980), p. 150.

[31] u201CVertical to Horizontal: A New Workplace Reality,u201D April 8, 2006.

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website.

The Best of James Ostrowski

Machan argues, in essence, that, while secession is a right consistent with the principles of the Declaration of Independence, that right does not extend to cases in which the seceding parties takes slaves with them when they leave. Thus, against the grain of much recent libertarian thought, he defends Lincoln and his Civil War.

Machan writes:

"More important is whether one group may leave a larger group that it had been part of — and in the process take along unwilling third parties. The seceding group definitely does not have that right. Putting it in straightforward terms, yes, a divorce (or, more broadly, the right of peaceful exit from a partnership) may not be denied to anyone unless — and this is a very big “unless” — those wanting to leave intend to take along hostages. . . . So, when one considers that the citizens of the union who intended to go their own way were, in effect, kidnapping millions of people — most of whom would rather have stayed with the union that held out some hope for their eventual liberation — the idea of secession no longer seems so innocent. And regardless of Lincoln’s motives — however tyrannical his aspirations or ambitious — when slavery is factored in, it is doubtful that one can justify secession by the southern states. . . . secession cannot be justified if it is combined with the evil of imposing the act on unwilling third parties, no matter what its ultimate motivation. Thus, however flawed Lincoln was, he was a good American."

The Cato Institute recently celebrated its twenty-fifth anniversary. Interviewed for the occasion by the Washington Times, Cato President Edward Crane described Cato as "the embodiment of the philosophy of the founders of this country.” The Washington Times wrote that Cato "is named after u2018Cato’s Letters,’ a series of libertarian pamphlets that helped lay the philosophical foundation for the American Revolution, says its Web site."

It is therefore surprising that the Cato Institute would publish an article that implicitly repudiates the American Revolution as an immoral kidnapping of 500,000 slaves! Great Britain sought support from slaves if they opposed the rebellion. The first emancipation proclamation was Lord Dunmore’s, the Royal Governor of Virginia, in 1775. That his proclamation applied only to slaves "appertaining to Rebels" has a familiar ring. Professor Thomas DiLorenzo in his new book The Real Lincoln, informs us that there was an abolition movement in England as early as 1774. Do Machan/Cato wish to make King George III and Lord Cornwallis our new national heroes, replacing Washington, Jefferson, and Adams?

Not only did the Founding Fathers "kidnap" slaves from Great Britain’s more anti-slavery auspices, but they seceded against the wishes of numerous Loyalists, many of whom fled or were forced to flee, or stayed and were subjected to harsh treatment. (Women were not consulted at all.) In fact, any secession done pursuant to a vote by the majority, will involve a "kidnapping" of sorts of those who voted against secession. This is akin to the coercion of minorities that is a necessary feature of democracy per se. Lincoln and his admirers can hardly complain about such coercion since he was one of modernity’s foremost proponents of majority rule. In fact, he started a war over it, so he said. Of course, it is better to allow a majority in a region to secede than to allow a minority to force them to stay. At least in that event the unhappy minority can have further resort to the principle and precedent of secession and so on until political boundaries are in accord with community sentiment to the fullest extent possible in this world.

It could be argued that the American Revolution did not involve the "kidnapping" of slaves since slavery was not banned in Colonial America. That point does nothing to advance the Machan/Cato position as neither was slavery nationally banned in the United States in 1861. Yes, but the vibes were bad for slavery at that time. Likewise for Colonial slavery. Great Britain banned the slave trade in 1807. The similarities between the Revolution and the War for Southern Independence vis–vis slavery outweigh the differences, which is a problem for those who favor the first and oppose the second. This is no problem, however, for Rothbardians who view them as America’s two just wars. See, Murray Rothbard’s sublime essay, "America’s Two Just Wars: 1775 and 1861," in The Costs of War, John V. Denson, ed.

Merely because Cato’s implied repudiation of the American Revolution is monumentally shocking does not of course prove that it is wrong, so let us deal more directly with the argument on the merits. First, as Lincoln critic extraordinaire DiLorenzo has observed, Lincoln did not profess to fight the war to end slavery. This is a gloss that has been retroactively superimposed on the four-year long bloodbath. At most, then, Machan/Cato lend Lincoln a moral cover that Lincoln himself eschewed. The moral cover Lincoln himself cited was majoritarianism, which endorses coercion and the "kidnapping" of the minority. The Union itself kidnapped men to fight in its army. They labored in fields under the hot sun like slaves but endured an additional burden: a breeze of bullets.

It is counter-productive and ahistorical to provide a moral justification for a war, after the fact, that is different from that which animated the combatants. Isn’t it obvious that the victors would pursue, not Machan/Cato values and virtues, but the means and ends the actual historical combatants preferred. This is why Professor DiLorenzo’s book, which carefully delineates the philosophy and values of Lincoln, is so valuable. History shows that DiLorenzo is right. Lincoln and the Republican Party believed in big government — the American System: national bank (inflation); high tariffs (protectionism) and internal improvement (corporate welfare). They believed in the majority imposing its will on the minority. They believed in martial force to achieve their goals.

What did we get from 1861—2002? Exactly what Lincoln wanted, and Machan opposes, and in huge quantities. Historian Arthur Ekirch observed that the Civil War led to "a decline in [classical] liberalism on all questions save that of slavery. . . " Robert E. Lee, with all his intelligence and insight, could not in 1866 have accurately predicted the long-range consequences of the Civil War unless those consequences were inherent in the philosophy of the victorious party from the beginning: "the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it."

Machan uses metaphors in describing the Confederacy’s actions regarding slavery, metaphors which are not entirely apt. He variously describes them as being "kidnapped" or held "hostage" by the process of secession. This implies a change in status or change of location that simply did not occur with secession. They were slaves before and after. Perhaps slavery would have withered away under subtle Union pressures. However, the North was making money from slavery and Lincoln promised not "to interfere with the institution of slavery in the States where it exists." Perhaps slavery would have withered away under the Confederacy as it did in numerous other countries. The metaphors are inapt for another reason. We need not worry about using force against a kidnapper since the victim doesn’t have to live with him afterwards. The slaves, however, unless they were sent back to Africa as Lincoln wanted, or deported to the North as no one apparently suggested, did have to live with white Southerners afterwards the vast majority of whom did not own slaves. That is why in those circumstances there was a real value to pursuing a peaceful (albeit rapid) solution to the problem of slavery.

Machan/Cato argue that the existence of slavery in the Confederacy justified a war to stop secession. It will be interesting to see how far, spacially and temporally, we can extend that principle. I take it that, in 1859, Machan/Cato would have favored a war of revolution to overthrow the slave federation known as the United States, whose constitution institutionalized slavery (three-fifths clause; importing slaves allowed until 1808, return of slaves required) and authorized its central government to protect slave states against "insurrection." Slavery existed in fifteen states and the District of Columbia and non-slave states indirectly benefited from slavery by means of a tariff which disproportionately funded the federal government out of taxes collected in the South. I take it that during the first years of the Civil War, while slavery persisted in several Union states, was undisturbed by Union troops in conquered Southern territory, and was not yet constitutionally banned, Machan/Cato would have supported an uprising against the Union to free the slaves. That is a real mind-blower as they used to say in the Sixties.

Even if there is a moral right to use force to free slaves, that right must be exercised carefully and proportionately to the goal that is sought. Force should be threatened prior to being used. Anyone who is aware of an ultimatum to the South of the following form — "You may leave but you must free your slaves and allow them to leave or stay in freedom." — please let me know. Anyone who can demonstrate that after Union troops seized control of slave-holding areas of the South, they thereafter molested former slaveholders not at all, is a better historian than I am.

What ultimately can a natural rights libertarian say about Lincoln, secession and slavery? The South had the right to leave in peace; slavery is and was morally wrong; though force may be rightly used to end slavery — after all other means for ending slavery have failed — such force must be strictly limited to accomplishing that end and must not violate the rights of third parties by means of taxation, conscription or mass murder; the Union’s invasion of the South, involving as it did taxation, inflation, conscription, confiscation, destruction and the mass killing of non-slave holders, and not having been initiated for any libertarian purpose widely understood at the time, must be condemned as a moral outrage; had an effort been made at the time to free slaves throughout the United States (including the District of Columbia, Delaware, Kentucky, Missouri and Maryland) that did not purport to violate the rights of innocent third parties, or accomplish any evil goals such as expanding the power of the central state, libertarians at the time should have supported it; alas, no such movement existed; thus, any attempt to pretend that the Union’s invasion of the South was a moral cause to end slavery and did not have numerous other and evil goals, the accomplishment of which plagues us today, is an absurd exercise involving the libertarian endorsement of illibertarian means and ends then and continuing.

June 8, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

James Ostrowski Archives

This is above my pay grade, but can some higher-up enlighten me? While you are at it, please explain why the US also gives economic aid to Palestine? Also, why did the U.S. go to war to reinstall a dictatorship in Kuwait and preserve one in Saudi Arabia? And why did the same people who now emphasize that the US should support Israel because it is the only democracy in those parts, support that war. Really, I’m confused.

Confusion turned to bewilderment when I heard about the US’s yawn at the overthrow of a democratically-elected president in Venezuela. As reported in the Guardian:

Despite the U.S. insistence that nations in the Western Hemisphere follow democratic procedures, the Bush administration did not protest when the popularly elected Chavez was forced from office Friday.

While Latin American leaders were condemning the coup, the State Department said Chavez was to blame for his fate. A spokesman charged that Chavez authorized followers to open fire on demonstrators, leaving more than a dozen dead and hundreds wounded. (April 16th)

So, in the Middle East, the US must support the only democracy, even when it uses violence against civilians, but in Venezuela, the US loses no sleep when a pugnacious democrat is ousted (for two days). If there is a unifying principle here, please let me know.

Also, why use democratic-ness as a criterion for resolving what appears to be a dispute over land with each side posting historical (hysterical) maps to prove its point? What does democracy have to do with it? When was the proper owner of these disputed lands decided by an election in which all claimants could vote? And why should such issues be decided by an election, anyway? Clue me in, please.

Also, let me know if the Palestinians voted to allow the Israeli Army into Gaza and the West Bank in 1967. If not, how is it that the democratic-ness of the internal decision-making process of Israel justifies its rule or control over others not party to that decision-making process? And more broadly, isn’t using democracy — mob makes right — as the ultimate criterion for right and wrong a fancy form of ethical nihilism?

Anyway, Israel is a democracy. It says so right there in its constitution. Hey, wait a minute, Israel has no constitution. That’s okay, I suppose. The US hasn’t had one either since 1861. If the US had a real one, its federal government would not be able to steal money from its subjects and give it to states and proto-states in the Middle East so they can kill each other, and make each other angry, resulting in some of the combatants retaliating against Americans while other combatants engage in espionage against the United States.

Here are some other things I’m confused about. For thirty years, supporters of Israel have told us that the Arabs don’t recognize Israel’s right to exist. I don’t speak Arabic, so I took them at their word. Recently, however, supporters of Israel have denied it is u201Coccupying Palestine.u201D This is u201Cdisputed territory,u201D they say. Sure sounds like Israel doesn’t recognize Palestine’s right to exist either.

Still more confusion. In response to Palestinian claims to this or that territory currently controlled by Israel, and in response to Palestinian violence in support of those claims, if you say, hey, Israel won the wars, the Arabs lost, case closed; that’s fine. You can endorse that theory — might makes right — if you want, but please don’t use that theory to condemn violence by the other side. They are, apparently, merely trying to overturn the results of previous wars, which attempt is perfectly consistent with the philosophy that might makes right. Why should Palestinians accept the verdict of wars fought in the last sixty years when Israelis don’t accept the verdict of a war with Babylon in 586 BC which led to mass exile from Israel? Talk about Arabs and Serbs holding a grudge.

Tying together my confusion about the democracy and might makes right arguments, we are told that (1) dictatorships surround Israel and have attacked Israel over the years, and (2) the actions of those dictatorships are (somehow) binding on the lives and property of millions of Palestinians who never had a chance to vote them up or down. Please explain the logic to me.

Finally, why is private-sector terrorism wrong, but public-sector terrorism right? Oh, I forgot. States cannot engage in terrorism, by definition. Silly me. However, a corpse by any other malefaction would smell as foul.

I expect no answers to the questions I have raised. (Please write all hate mail in Arabic or Hebrew.) To expect propaganda to be logical or coherent is absurd. To expect the disputants to do more than rationalize their interests is nave. The only hope for true peace in the Middle East — application of classical liberal and libertarian principles: individual freedom, private property, return of property to its just owners — seems unlikely. All the classical liberals in Israel and Palestine could fit into a small bus. Reasoned dialogue is virtually impossible. Where reason is absent, force fills the vacuum. Supporters of the Israeli point of view such as Rush Limbaugh advise that peace can only be secured when one side has decisively defeated the other by force of arms, oblivious to the possibility that anti-Israeli forces may also take their message to heart.

Fortunately, might makes right only for awhile: "Throughout history, force appears as the arbiter of the moment. . . Reason, organically slow — reacting against force only when the ill effects of the latter become so general as to be inevitably obvious — finally confirms or annuls its judgement." (Bunford Samuel, 1920)

At this moment, however, the conflict in the Middle East seems insoluble by the United States or by any outsiders. It involves irreconcilable views based on fervently held and unshakeable religious and ideological beliefs. It involves collectivist thinking on both sides — u201CEvery Arab is responsible for the acts of any Arabu201D; u201CEvery Israeli is responsible for the acts of any Israeli.u201D What is needed is individualist thinking: which individuals did what to whom and when, and what must the wrongdoers do to make the victims whole?

If there is any hope, it lies in the exhaustion of the disputants and the exhaustion of their ideas. Everything has been tried and has failed except one thing. The answer is before our eyes: freedom itself. Jews and Arabs lived peacefully together in this region for centuries, with neither side compromising core religious principles. What can make that possible again are the principles of classical liberalism: peaceful commercial relations and individual rights. Classical liberalism stands opposed to bloodshed, hate, and conquest. For all sides to agree to these ideals is the best and only guarantor of peace.

April 24, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

James Ostrowski Archives

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Anyway, Lindsey’s stated purpose in the attack is to get these wacky libertarians in line with the establishment libertarian agenda of tinkering with the welfare state with welfarite school vouchers and private socialist security accounts. Lindsey does not say why he wants these misguided libertarians messing around with these banal issues. If they are wrong about the major issue of our time — war and peace — why trust them with any other issue? Pardon me if I am skeptical. It is standard operating procedure in politics to ignore your opponents unless and until they are beginning to win substantial support. Could it be that the anti-war libertarians are beginning to draw blood, metaphorically speaking, of course?

Lindsey makes some revealing arguments in his web log. (Come to think of it, I don’t like the term u201Cweb logu201D either.) Libertarian think tanks should not associate with anti-war liberals like Lewis H. Lapham. Strange, coming from a Cato man. Cato has had many left or liberal speakers over the years including Baltimore mayor Kurt Schmoke and drug policy scholar Ethan Nadelmann. Cato has published left-wing columnist Anthony Lewis. George McGovern even showed up at a Cato conference once and was treated with great respect. Horrors! And guess what. Cato once published an essay by a Lewis H. Lapham. The Crisis in Drug Prohibition, David Boaz, ed. (1990). Perhaps it wasn’t the same guy Lindsey is complaining about.

The next sin of anti-war libertarians was inviting Gore Vidal to speak at a conference. He is the u201CKing of All America Haters.u201D Gee, I thought the King of All America Haters was H. L. Mencken, the most vicious critic of America who ever lived, and after whom Cato named one of their fellowships. I don’t recall reading much where Gore Vidal attacks America; mostly he attacks the second branch of a supposedly limited federal government. Unless one equates America with the President of the federal government, that indictment must fail. Cato’s hero Mencken hated the President (which one? all of them), the Congress, and the Supreme Court, but he also took direct aim at the American people, u201CBoobus Americanus,u201D the culture, and the predominant religion.

If an u201CAmerica-hateru201D is one who strongly criticizes the bellicosity of the federation’s executive branch, Lindsey better look down his own hallway. There is, at Cato, a man who said about America’s most revered President: u201CAbraham Lincoln’s role in history may be memorable, but it is not praiseworthy. His most important decision — to plunge the nation into civil war — was wrong. In the end, he bears primary blame for mass death and destruction then and for the oppressive Leviathan state with which we must contend today.u201D Whoever uttered these words apparently thinks Lincoln — body count — 620,000 — was what Lindsey thinks Gore Vidal — body count — 0 — is: a monster. Warning: Senior Fellow Doug Bandow, you may soon get blogged by Brink Lindsey.

Lindsey’s coup de grace is to trace the error of anti-war libertarianism to its u201Canarchism.u201D Apparently, no Cato man or woman has ever supported a State-less world, at least not since Cato moved to Washington from San Francisco and banished co-founder Murray Rothbard to fly-over country. I note, however, that Cato apparently favors anarchy between and among States, or have they endorsed world government already? It is so hard to pin down those philosophically spontaneous Hayekians with their dynastic, strike that, their dynamist mindset.

Anyway — I can say u201Canywayu201D because I am sort of blogging (internet diary entrying) — Lindsey says he has previously posted about the evils of non-intervention. I guess that means I have to scroll through 138 pages of diary entries looking for this post. That’s the thing about blogging — you just sort of opine without worrying about marshalling facts, demonstrating the truth of first principles, and using logic to apply those principles to the facts at hand. Why bother with all that hard work? Just state your conclusion; everyone is just dying to hear it.

Lindsey does hint at an argument when he writes that anti-war libertarians refuse u201Cto accept the legitimacy of the state as the guarantor of our liberty… If you don’t accept the legitimacy of the state, you can never really embrace the necessity of war — since war is inescapably an affair of state…. War machines are creatures of the state–and [are] therefore inherently suspect.u201D It is difficult to conjure a better argument in favor of anti-war libertarianism than Lindsey’s purported argument against it. War is the greatest threat to human life, human liberty, human prosperity, and human civilization. Modern war, as developed by Lincoln and perfected in the 20th century, is solely the product of the modern taxing, conscripting, confiscating, and inflating State. No States, no catastrophic wars. Sounds good to me.

Lindsey complains that u201Cit’s very easy to drift from anti-state libertarianism into outright anti-Americanism. After all, if all states are bad, and the American state is the biggest, most powerful state in the history of the world, then it must be pretty rotten — right?u201D Again, there is a confusion here between the federal government of the United States, primarily its executive branch, and America. It should go without saying that State and society are one only in a totalitarian country. Let’s take the two quintessential Americans, Washington and Jefferson. Washington said u201CGovernment is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.u201D Jefferson said, u201CThe natural progress of things is for liberty to yield and government to gain ground.u201D Sounds like these Americans understood the distinction between society and State.

Lindsey writes, u201CWe may claim our rights on moral grounds, but we enjoy them only by virtue of government…. Of course the dependence of liberty on government is tragic, because of the problem of u2018who guards the guardians?’ But whoever said life was easy?u201D I always thought Juvenal’s question — u201CBut who will guard the guardians themselves?u201D — was rhetorical. Theory and history demonstrate that the answer is u201CNo one.u201D Give state officials a monopoly on the use of force and they will abuse that monopoly to advance their power, wealth, and prestige. Depending on government to protect liberty is not tragedy, but insanity, which Einstein defined as u201Cdoing the same thing over and over again and expecting a different result.u201D

The u201Clibertarianu201D critics of anti-war libertarians invariably describe themselves as Hayekians. Hayek is in no position to object to this use of his name. Great as Hayek was as a scholar and economist, he was a wee-bit too vague and flexible in his policy prescriptions for my taste. For those who feel the need to maintain a substantial amount of ideological wiggle-room, however, Hayek is perfect. Is that why Rothbard is out at Cato and Hayek is in? (That’s a rhetorical question.) Let’s not be so cynical, though. Let’s take them at their word. They like Hayek’s ideas, or at least their interpretation of those ideas. They like spontaneous order, experimentation, trial and error, cultural evolution, dynamism, and distrust of rigid constructivist ideologies like natural rights.

Okay, why don’t you lovers of experimentation join us in a grand historical experiment? Having learned from hard and bitter experience that the modern state is the great evil of our time, why don’t you pragmatic realists face reality, reject that failed experiment in stasis and try another, more promising one. Why not try peace, liberty, and decentralization for a change? I don’t think Hayek would be too upset. Please, all we are saying is — give peace a chance. Think about that on April 15th when your beloved state guarantees your right to either cut a check to pay for its global military empire or live rent-free in a castle for five years. See photo; your accommodations may vary; bring a toothbrush.

April 9, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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It’s about Enron. Will describes "Washington" as "narcissistic and even solipsistic" for missing the real story and thinking it’s really about Washington. Later, Will tells us that these slimy narcissists are the bulwark of our economy: "a mature capitalist economy is a government project." The federal government — that master prevaricator, sublime counterfeiter, magnificent confiscator of private property and incessant meddler into private contracts between consenting adults — must underwrite and guarantee the free flow of accurate information in the private marketplace. Personally, I wouldn’t trust the government to tell me which way is up.

Will quotes Randolph Bourne’s "War is the health of the state." — with no hint that he thinks this a bad thing. Then he notes that "Enron’s collapse is a reminder that economic scandal, too, causes the state to wax." War grows the state; scandal grows the state; Will grows the state.

Will writes that "a properly functioning free market system does not spring spontaneously from society’s soil as dandelions spring from suburban lawns. Rather, it is a complex creation of laws and mores that guarantee, among much else, transparency, meaning a stream of reliable information about the condition and conduct of corporations." A puzzling passage. First, government does not create mores, at least not directly. The mores its policies do slowly engender are uniformly bad ones: dishonesty, rapacity, laziness, and pugnacity.

To the extent that the law does have a role to play in the stock market, it is in banning and punishing fraud: false statements made to induce people to part with their money. That’s been illegal forever and it is the furthest thing from "complex." Beyond that, information is a commodity that, like any commodity, is most efficiently supplied by the free market. Unlike government, which grows continually in spite of poor performance, the market is self-correcting. Deficiencies in one market enterprise can be remedied by profit-seeking entrepreneurs offering goods and services that remedy or overcome such deficiencies. (Tip to critics of private business: start your own business, do better, make millions.)

Will’s senseless solution is for politicians — who he decries in his article as being seduced by Enron’s huge campaign contributions — to step in and clean house. "Clintonian" (his term) government will guarantee honesty and fair-dealing. However, Will’s fellow Hamiltonian David Brooks reports that buying political influence gave Enron its big start in the first place:

"On July 5, 1995, Enron Corporation donated $100,000 to the Democratic National Committee. Six days later, Enron executives were on a trade mission with Commerce Secretary Mickey Kantor to Bosnia and Croatia. With Kantor’s support, Enron signed a $100 million contract to build a 150-megawatt power plant. Enron, then a growing giant in energy trading, practically had a reserved seat on Clinton administration trade junkets. . . . Enron received nearly $400 million in U.S. government assistance so that it could build a power plant south of Bombay. According to reports in the Houston Chronicle at the time, the Export-Import Bank kicked in $298 million, while another federal agency, the Overseas Private Investment Corporation, put up $100 million." Weekly Standard, 1/21/02.

With David Brooks around, who needs George Will?

I agree with Will that we should have "congressional hearings that embarrass the looters, if they are capable of embarrassment." Alas, looting politicians are the only creatures who do not blush, but need to.

George Will deigns to inform us — presumably because we mere mortals do not already know — that the "mature" free market depends on coercive government regulations to ensure the accurate flow of financial information. Since this is an essential good, isn’t it essential that people be persuaded of its desirability by accurate op-ed pieces by such as George Will? Why shouldn’t a government bureau coercively regulate op-ed writers who disagree with Will to ensure "a stream of reliable information about the condition and conduct of" the government?

If "capitalism is a government program,"as Will said on Sunday; if the private market in information is defective, why isn’t journalism about capitalism also a government program?

January 17, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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Case in point: Failing to prevent the attacks of September 11th. How many times have we heard since then that this was all Bill Clinton’s fault? He shrunk the military; denuded the CIA; he wasn’t tough enough; he was distracted by his libido and his libido cover-ups. Whoa, let’s back up a little. What about that great modern conservative icon, Ronald Reagan? In a major speech on July 8, 1985, he called recent terrorist attacks on American citizens and military personnel “acts of war,” and a threat to “our way of life” and our “democracy.” He put the blame for terrorism squarely on the backs of the depraved states that allow terrorists to operate freely.

Reagan named names and promised coordinated action against those states. He made it clear that he believed that the terrorists who were murdering American citizens and attacking American installations were being trained, financed, and directly or indirectly controlled by a core group of radical and totalitarian governments, a new international version of Murder, Incorporated. He said the goal of the terrorists was to force America to withdraw from the world and abandon its friends. He compared their tactics to those of Nazi Germany and called on all “civilized” nations to rise up against them. He promised to bring the terrorists to justice.

What did Reagan do? First, he helped bin Laden get his start by funding the Mujahidin. Then, he lobbed a missile at Colonel Qaddafi that miraculously bounced off his tent, resumed orbit, headed northwest, and knocked a plane out of the sky over Lockerbie, Scotland. Okay, so the Gipper dropped the ball, but why didn’t his protégé George Bush, Sr. pick it up and run with it? I know. Bush, Sr., did nothing because he knew pretty boy Clinton was coming in, thought he would do nothing and then conservatives could criticize him for it, and George Bush, Jr. could get elected. Yeah, that’s it.

So now Bill Clinton is dictator of the United States. Strike that, he’s president in a constitutional system with a supreme legislative branch controlled by, you guessed it, Republicans. Here are the talking points to the Republican troops about the Clinton-era: (1) the Republicans were totally responsible for anything good that happened to the economy; (2) the Republicans were not responsible for anything bad that happened with terrorism (even though we controlled oversight and the purse strings).

Of course, everybody "knows" Clinton did nothing to stop terrorism. Not quite. According to an exhaustive analysis in the New York Times on Sunday, he did quite a bit. Yes, there was the usual bureaucratic bumbling, and there were missed opportunities, but the Clinton Administration made numerous efforts over many years to thwart bin Laden and Al Qaeda:

• The CIA created a virtual station to track bin Laden.
• American diplomats pressed Sudan to expel bin Laden.
• State Dept. circulated a dossier that accused bin Laden of financing radical Islamic causes around the world.
• NSA eavesdropped on telephone lines used by Al Qaeda and broke up one Al Qaeda unit as a result.
• Ordered cruise missile strike on Al Qaeda camp in Afghanistan.
• The United States disrupted other Al Qaeda cells, and got several Al Qaeda members prosecuted in Egypt.
• President Clinton approved the use of lethal covert force against bin Laden and a dozen of his top lieutenants.
• Four times Clinton authorized the CIA to kill or capture bin Laden.
• The C.I.A. stationed submarines in the Indian Ocean to track bin Laden’s movements in preparation for a cruise missile attack.
• The White House asked the Joint Chiefs of Staff to develop plans for a commando raid to capture or kill bin Laden. The Pentagon balked.
• Clinton administration tried to choke off Al Qaeda’s financial network by threatening states and banks with sanctions if they dealt with the terrorist group.
• In 1999 and 2000, some $255 million of Taliban-controlled assets was blocked in United States accounts.
• Arrested Ahmed Ressam when he tried to enter the United States in Port Angeles, Wash., on Dec. 14, 1999. Ressam had 130 pounds of bomb-making chemicals.
• In March 2000, the FBI, started a series of anti-terrorism seminars with agents who headed the bureau’s 56 field offices, encouraging them to hire more Arabic translators and develop better sources of information.
• The FBI asked for money for a computer system that would allow various field offices to share and analyze information collected by agents–the Republican Congress initially said no.
• In September 2000, an unarmed, unmanned spy plane flew over Afghanistan searching for bin Laden.
• In October 2000, the administration unsuccessfully tried to kill bin Laden.

Currently, we are led to believe that the Republicans, prior to September 11th, knew that Clinton’s efforts were too little and too timid, and that the country was at imminent risk of a disastrous terrorist attack as a result, and that, given half a chance, they would take quick, decisive and aggressive action. Therefore, on January 20, 2001, right after the swearing-in ceremony was over, Team Bush did — nothing! Well, not exactly nothing. Condoleezza Rice did meet with Sandy Berger who warned her about bin Laden. Also, Bush retained George Tenet, Clinton’s CIA man.

According to the Times, "until Sept. 11, the people at the top levels of the Bush administration may, if anything, have been less preoccupied by terrorism than the Clinton aides." The Bushies apparently did little in response to intelligence indicating that "Al Qaeda was planning to attack an American target in late June or perhaps over the July 4 holiday." The Bush Administration was drafting plans for dealing with terrorism, but somehow, even though, we are led to believe, any idiot could have instantly seen the flaws in Clinton’s approach, those plans had not even been presented to Bush for review by September 11!

So let’s cut the bull, Republicans. Take a deep breath and some truth serum and repeat after me: "On terrorism, there’s not a dime’s worth of difference between Democrats and Republicans. Democrats and Republicans are the two factions of the one-party state that rules America. Both factions are to blame for pointlessly stirring up foreign enemies to hate America, then failing to marshal federal military and intelligence resources to protect Americans on September 11th. Nostra culpa!"

January 3, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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Kelly thinks the United States has the strongest military in the world, able to "conquer the world." Kudlow thinks we need to increase defense spending. I guess the Post wants us to experience cognitive dissonance and hold two contradictory thoughts at one time: our military can conquer the entire world but is starved for resources. The scary thing is, I bet virtually all neoconservative writers believe all these propositions are true:

1. Bill Clinton eviscerated the military;
2. Our (Clintonian) military could conquer the world;
3. Our military needs a lot more money.

Personally, I am not qualified to discuss these matters, according to Jack Kelly, that is. He describes "the chattering classes" as "know[ing] absolutely nothing about matters military, and show[ing] little inclination to learn." This is the standard militarist line: unless you have been in the trenches, you are incapable of saying anything intelligent about defense policy and should just shut up. Like there’s something extraordinarily complicated about pumping lead into the enemy faster and more accurately than the enemy can pump lead into your people. I am getting a headache already. Has anyone come up with anything new since Nathan Bedford Forrest advised, "Get there first with the most."? If you think military strategy is complex, try reading Heidegger.

Strange it is that so few neoconservatives have donned military fatigues outside of costume parties. They worship the use of force from afar. As for Jack Kelly, a quick Google search did not disclose his military service, if any. I suppose he gets his unique military insights the way the rest of us do: sitting safely in front of a computer screen. But readers be warned. Mr. Kelly would probably say I am not qualified to comment on military matters.

In my defense, I am a member of the militia of the United States. What, some crazy far-right legal theory? No, federal law, 10 U.S.C. §311. Also, they do allow me to vote for Commander-in-Chief every four years. I must admit, however, that no one I ever voted for, won. But even that fact bolsters my credentials. It means I bear no vicarious responsibility for such military blunders as having no fighters ready to protect vital civilian and military targets on September 11. Ultimately, though, I am just another middle-aged peacenik who avoided service in Viet Nam by being chronologically challenged (b. 1957).

Back to Kudlow. He cavalierly proposes defense "spending hikes of $75 billion a year." We already live in a country where most mothers must work, with the salaries of mothers in two-income families going almost entirely to the taxman. As a result, millions of children are being raised by day care and television-and it shows. Nevertheless, Kudlow wants to vastly increase defense spending on a military his partner Kelly says can unilaterally conquer the world. Engaging in the fallacy of the broken window for the second time since September 11th, he promises that such increased spending will have a "salutary impact" on the economy. Previously, he opined that September 11th would stimulate the economy. Did he have in mind gun dealers, psychiatrists and the makers of anti-depressants?

Why do we have a military that can conquer the world? How about a military that Washington or Jefferson might have imagined: one strong enough to deter invasion and strong enough to repel invasion? Having a Herculean military is far from cost-free. The out-of-pocket cost alone is enormous. As Henry Hazlitt taught us, it is difficult to see the costs of government spending. If you look closely, the costs of our military machine can be seen in poor and working class neighborhoods where millions of Americans struggle to survive financially, maxed-out on credit cards, with no health insurance or retirement savings, living in run-down housing and driving beat-up cars.

There are other costs. U. S. military spending sets the pace and forces all major powers to spend more just to stay in the same century as the Americans. Ever-increasing resources in poorer nations are plowed into the military. There is an increased focus on developing those sickeningly dangerous weapons that even the vaunted American military cannot stop: chemical, biological and nuclear. Finally, of course, military power cannot prevent terrorist attacks. Quite the contrary: military might engenders terrorism. Military superiority breeds arrogance; arrogance leads to foreign intervention; foreign intervention provokes terrorism. Terrorism is precisely that strategy adopted by those who wish to strike governments whose policies they find intolerable, but whose militaries are invincible.

Why do we have a military that can conquer the world? It is not because our power elite literally wishes to conquer the world. Rather, it is because they wish to have the final say about most things in most places most of the time around the world. They want to call the shots. This is a very expensive and very dangerous whim to indulge. Ordinary Americans have paid the price for this power lust, in treasure, and, more recently, with their lives. The tag-team of Kelly and Kudlow want us to pay even more. It’s just another Big-Gov-Con.

December 22, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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~ Thomas Jefferson

"The job of an orator is to discern events in their beginnings, foresee what is coming, and forewarn others."

~ Demosthenes

These do not appear to be good times to be a libertarian or classical liberal. We are at war, war is the health of the state, and there’s no end in sight. The terrorist attacks were blamed on too little intervention abroad and too much freedom at home. A major industry was recently bailed out by the state with virtually no debate, and this was done by a supposedly conservative House of Representatives and President, to say nothing of the totalitarian legislation being introduced on a daily basis.

The failures of our foreign policy interventions have not, as one might expect, been the cause for serious re-evaluation in the corridors of power. Quite the contrary. Our power elites are stirring the pot for massive and unprecedented and dangerous foreign adventures.

One recalls what Ludwig von Mises said about the reaction of politicians and pundits to failed economic interventions: "The failures of the interventionist policies do not in the least impair the popularity of the implied doctrine. They are so interpreted as to strengthen, not to lesson, the prestige of these teachings."

There is good news, however, if only we look beneath the surface and beyond the present. What the American people want is peace, freedom, prosperity and security. To paraphrase the farmer from Maine, I’m afraid you can’t get there from neoconservatism. Only libertarianism and classical liberalism appear to offer coherent answers to the most pressing questions.

How did we get into this mess?

Any way you look at it, we got into this mess because our own government and other governments have not exactly followed the principles of minimal state Jeffersonian/libertarian republicanism. We have trusted the United States government to protect the homeland, and use its "intelligence" to ferret out enemies, but all the while we were left vulnerable. Even worse, the US government has created breeding grounds for terrorism by actively intervening in the Middle East for at least fifty years. As the result of these intrusions, millions of Arabs and Muslims hate our guts and thousands of them want to kill us.

Neoconservatives say these people are ignorant and crazy and deluded fanatics, and I say, they do exist, do they not? You say, but many of our military actions have been on behalf of Muslims (Kosovo, Kuwait). And I say, you remind me of a guy who keeps sending flowers to a certain lady who keeps turning him down for a date. What is it about "Get the hell out of here!" that you don’t understand?

Neoconservatives never cease to remind us that some Muslims apparently celebrated the destruction of the World Trade Center. They fail to see the real significance of this. Evidently, these Muslims believe American foreign policy has not been favorable to them. There are two possible explanations for this. Either U. S. foreign policy has been unfair to them, or it has been fair, but for a variety of reasons, they are absolutely certain it has been unfair. It really doesn’t matter whether, in some scientific objective sense, this feeling is justified. Those who wander into far corners of the world take the risk that they will be misunderstood. What matters is that, as the result of our numerous interventions into the Middle East, the United States has made millions of enemies, enemies who form an infrastructure for terrorism.

The traditional libertarian foreign policy is non-intervention and neutrality. This was recommended by Washington and Jefferson and expounded more recently by the modern libertarian tradition. The point is not that we think foreign states are sacrosanct. Murray Rothbard, in particular, thought most were murderous kleptocracies. No, the case for non-intervention is based on hard-nosed realism:

• Non-intervention tends to keep foreign disputes narrow and localized. World wars, with their inevitable globally disastrous consequences, are avoided.
• Libertarians deny that such as Stalin, Clinton, Churchill, Wilson, Roosevelt, Truman, Johnson and Nixon, already busy violating the rights of their own subjects, have any training, experience or competence, in coming to the rescue of those whose rights are being violated by their own hack politicians and dictators. These gentlemen’s humanitarian rescue missions resulted in Hitler taking power in Germany, Eastern Europe being enslaved by communism, genocidal chaos in Southeast Asia, bombing Serbia back to the stone age, millions upon millions of civilian and military casualties, and, by the way, the current mess in the Middle East.
• Foreign intervention leads to "blowback" (the CIA’s term). In the words of Frederic Bastiat, people are not clay; they always react and respond to the state’s use of power against them in ways that result in unintended and negative consequences from the state’s point of view. The dim-witted state is like a chess player who is unaware that the other fellow gets to move after he does. The widespread use of state power erodes private morality, as people learn from the state’s actions and rationalizations that it is acceptable to use force against others to achieve their goals. These two factors are the foundation of terrorism.
• An interventionist state is a large, powerful, and snooping state. It has a large standing army, inconsistent with the traditional republican reliance on a citizen militia. It requires heavy taxation to support the defense bureaucracy and tends towards repression of civil liberties since the warfare state cannot brook dissent.
• Domestic policy comes to mirror foreign policy. The warfare state leads inexorably to the welfare state as the apparent success of military central planning leads to demands for domestic central planning. Thus, from those who think society should be run like an army barracks, we get the "war on poverty" and the "war on drugs".

What about cases where a state is clearly attacking, even murdering, its own citizens? The libertarian would urge the citizens of that country, using their right to bear arms, to overthrow the despots. Notice that the right to bear arms, only fully respected by libertarians, is the key to preventing and remedying such a state’s terrorism against its own citizens. Gun controllers all along the political spectrum proffer a clumsy solution: Other states, far, far away, which do have the right to bear arms, will come to the rescue after a couple of hundred thousand have been killed. There has got to be a Nobel Peace Prize waiting for anyone who claims to have authored that neat doctrine. Bill Clinton?

Libertarians have no objection to private individuals from other countries assisting in the effort, with their own money, guns, and bodies. What we object to is such sympathizers using the government designed to protect our rights, to force us to spend our own money and bodies (conscription), or the bodies of our troops, defending the citizens of other countries. When in the course of domestic policy-making, discrete private interests use the state to impose costs on the general public for their own selfish desires, we have no problem applying special interest group analysis and condemning the practice. We have been fairly blind, however, to the phenomenon of special interest group politics operating on foreign policy.

Some segments of the population, for historical, religious, or ethnic reasons, have an attachment to some foreign country. They use the federal government to assist that country at the expense of their fellow citizens who are either indifferent or hostile to the interests of the foreign state. Using others against their will to achieve one’s goals is as reprehensible in foreign policy as it is in domestic policy or in private life generally. These special interest group foreign policy interventions, like their domestic counterparts, tend to snowball, both by example and by way of their unintended negative effects. Government creates its own demand.

What exactly is the mess we are in?

Obscured by a motley crew of seemingly disparate ideologies, the basic political divide is between those who believe that individuals should be free to live and act according to their own judgment (e.g., Jefferson), and those who think that people should be compelled to live according to the judgment of those in charge of the ruling collective or government (e.g., Mussolini). Alone among political philosophies, libertarianism supports the liberty of the individual. All other ideologies affirm the efficacy of centralized force, differing only in degree or emphasis.

Regardless of how they describe themselves, or for what particular reasons they wish to push people around, all non-libertarians can be counted on in the end to join forces to oppose the dangerous concept that individuals have the right to control their own bodies, minds, and property. For example, conservatives signed onto the welfare state lest they lose the power they needed to force people to be good and to fight their global crusade against communism. Liberals, fearful of being seen as soft on communism, lose power and not be able to create the "Great Society", decided to fight the commies in Viet Nam. Now, another conservative sell-out: the real reason George H. W. Bush reneged on his "no new taxes" pledge was to gain liberal support for the Gulf War. Finally, another liberal sellout: liberals like Charles Rangel signed onto the drug war, again, so as not to lose the political power they needed to expand the war on poverty. By the way, they called it a "war" on poverty because the original warriors wanted to apply the methods they used fighting WWII to the problem of domestic poverty.

As these examples illustrate, superficial differences between and among various ideologies on the basis of the kinds of government intervention they favor, are essentially illusory. All government intervention — foreign, cultural, or economic — involves the use of force to transfer life, liberty or property from some people to others, causing negative consequences for the victimized group, and leading to demands for further intervention to remedy the problems caused by the initial intervention. Support for intervention in one area, by reinforcing the principle that force is an efficacious means of solving human problems, tends to legitimize intervention in other policy areas. Since illibertarians believe in the use of aggressive force in principle, they lack a principled basis for opposing its use even in ways that make them uncomfortable.

Since power is their ultimate premise, conservatives and liberals will logroll over liberty to maintain their power. In the end, we got all the bad stuff even though certain groups paid lip service against each program: Cold War, hot war, war on poverty, drug war. Notice that all these wars were brought to you by a coalition government of liberals and conservatives and featured massive centralized state coercion aimed at preventing Americans from living their lives as they wished. You cannot trust a liberal or a conservative to advance liberty. In the end, they will always pick power over principle and power over you.

It is no wonder then that libertarians tend not to be elected to office and libertarian ideas tend not to influence policy. Libertarianism is not simply one of a number of competing political philosophies along with conservatism, liberalism, neoconservatism, neoliberalism, Greenism, communism, and socialism. In reality, those groups form a solid front against the libertarian agenda. Because all non-libertarian groups work together to oppose liberty in practice, it is fair to group them together as one de facto ideology.

What shall we call this broad-based statist coalition? It is apparent that there are two basic political mindsets: libertarian and fascist, the latter term being used here in its colloquial sense to mean imposing your will on others. Even a more academic definition is not far from my usage. Fascism involves "the glorification of the state and the total subordination of the individual to it. The state is defined as an organic whole into which individuals must be absorbed for their own and the state’s benefit." (Columbia Encyclopedia, 6th ed.) Sounds like America at war. Or FDR’s first inaugural address:

“If I read the temper of our people correctly, we now realize as we have never realized before our interdependence on each other; that we can not merely take but we must give as well; that if we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective. We are, I know, ready and willing to submit our lives and property to such discipline, because it makes possible a leadership which aims at a larger good. This I propose to offer, pledging that the larger purposes will bind upon us all as a sacred obligation with a unity of duty hitherto evoked only in time of armed strife.” (Emphasis added.)

The fascists of all parties have put their faith in the agency of massive centralized force — the state. Now, the essential vulnerability of the strongest state ever created has been demonstrated. That demonstration challenges the core of modern political thought — the notion that peace can be secured only by giving the state a monopoly on the use of force.

Yet another casualty on September 11th was Hobbes’ Leviathan, the bible of the modern state. Mr. Leviathan, our formerly "mortal god to which we owe…our peace and defence", you are no longer able to secure that "peace and defense" (as if you ever were), because you no longer have the "natural force" to subdue all your enemies. You no longer have the "common power to keep them all in awe." Rather, you are now in awe at the ability of your enemies to strike back at you.

The modern state is magnificent at destroying people and things. It is, however, largely incapable of preventing others from destroying people and things other than by the threat of retaliation. When the destroyer can remain anonymous, the threat of retaliation does not deter. Also, when the destroyer is willing to commit suicide or be executed or serve a long prison term, the state is incapable of deterring that person.

If the state can no longer use force without catastrophic retaliation from its enemies, its original premise — the efficacy of monopoly force — must be seriously questioned. If an unemployed ex-army man can respond to the state’s paramilitary assaults at Waco and Ruby Ridge with far greater destruction at Oklahoma City; if a crazed chemist can mail three envelopes and close Washington D. C. for a week; if 19 fanatics with box cutters can devastate a nation, is it not the case that the state’s power has been checkmated?

Private Sector versus Public Sector Terrorism
Relative Efficiencies

n
9/11 Attacks
US Air War on Serbia

duration
one day
78 days

cost
$500,000*
$4 billion*

personnel
19
36,000*

tools
box cutters, airline tickets
F-16s, Cruise missiles, B-52s

casualties
4,500*
6,500*

property destroyed
$30 billion*
$30 billion*

*Estimates based on a variety of sources including BBC News.

The modern nation-state is like the dinosaurs moments after a gigantic comet struck the earth 65 million years ago. They are still the biggest, strongest creatures in the neighborhood, but they are doomed to extinction because the environment has suddenly and radically changed. They are too stupid to realize their days are numbered. They go merrily on their way, thinking nothing has changed, bumbling, stumbling, and stomping around.

The problem is then that the state no longer has an effective monopoly on the use of force, but its leaders and allies refuse to acknowledge this. They continue to exercise their aggressive powers as they have done for hundreds of years. It is difficult to imagine a more dangerous situation.

How do we get out of it?

In theory, this is the easy part. Once we understand the problem and how we got into it, the solution should be easy. In reality, the solution will be difficult to enact. Many benefit from the current regime. Many have invested lifetimes in ideas that are now obsolete. It is a huge blow to the ego to admit that your fervently held beliefs were wrong all along. Yet, it must be done. Emerson said, "A foolish consistency is the hobgoblin of little minds, adored by little statesman and philosophers and divines. With consistency a great soul has simply nothing to do." These days, a foolish consistency could be fatal. Ideas must change to accommodate to the new reality. If bad ideas don’t die, good people will.

Libertarians, unlike all other political points of view, have a cogent and coherent theory of terrorism. Terrorists talk back to the modern state using the language the modern state has taught them: force and violence and murder and terror. Only a fool would deny that the modern state in the last 100 years murdered, tortured and maimed over 150 million people in pursuit of its nefarious goals. Throughout the 20th century, the modern state ran a tuition-free clinic in terrorism. In this unique context, please allow a breach of decorum as I quote from a speech I delivered on September 4, 1993:

"Now I contend that — and the building I used to go in every day was nearly blown up in New York, the World Trade Center [Feb. 23, 1993] — I contend that learning by government example is the root cause of most terrorism. Terrorists, sometimes victims themselves of various forms of state tyranny — simply adopt the violent methods of the governments that plague them. Private citizens learn moral lessons from big government by example and by rationale. Those who learn by observing, see the government using violence to achieve its goals. Those who learn by thinking a little bit beneath the surface, learn that violence is necessary when you cannot accomplish your goals by rational persuasion. Either way, the message is the same: force works, use it!"

And they do. Our best chance to stop private sector terrorism is to stop public sector terrorism. Governments must accept the principle that they are bound by the same rules of morality binding on private individuals: no more lying, cheating, stealing, and murdering. As Victor Hugo wrote: "Increasing the magnitude of a crime cannot be its diminution. If to kill is a crime, to kill much cannot be an extenuating circumstance. If to steal is a shame, to invade cannot be a glory."

We must immediately adopt a foreign policy of non-intervention and neutrality. We must bring the troops home. Most can be released with our thanks into the private sector. Some can be deployed actually defending the country at home.

This agenda will be difficult to enact. Inertia, the 100-year-old interventionist mindset, and a variety of special interest group pressures stand in the way. The first priority must be to disabuse people of the notion that our foreign interventions have been necessary to secure the free flow of oil. In truth, the only thing that threatens the free flow of oil is our senseless foreign policy. If the United States was neutral among the disputants in the Middle East, none of the oil-producing states there would be inclined to use oil as a political weapon against us. The simple fact is that those who possess oil can either drink it, burn it, or sell it. Certainly, the dictatorships that control large amounts of oil will try to manipulate the market to gain the highest price. One can only hope that ultimately these dictatorships are overthrown from within and the oil deposits returned to private ownership. Even if they are not, in the long-run, the free market, that amazing repository of the creativity of humanity, will defeat any energy cartel.

FREEDOM IS SECURITY

While the benefits of this program should be felt immediately, we will still have to deal with the lingering remnants of terrorism for several years. As with any major change of policy, it takes time for the consequences to be fully realized. For example, years from now, we may still face terrorist retaliation for the innocent people killed by our "smart bombs" in Serbia and Afghanistan.

The libertarian program gives us our best hope of defending against residual domestic terrorism. One of the founding fathers of the modern libertarian movement, F. A. "Baldy" Harper wondered why, if freedom is good for dealing with the challenges of life, it must be curtailed during emergencies such as wars? He believed, correctly, that it is during emergences that we need our freedom the most.

For example, we most urgently need a free market when facing wartime shortages. The market is the perfect means for rationing, through the price system, scarce resources, and encouraging, through the profit mechanism, the future production and distribution of scarce goods and services. The fascist method for dealing with shortages is disastrous price controls. Price controls increase shortages and cause distortions in the market with goods and services not reaching those who most urgently desire them and are willing to pay higher prices. They also reduce the incentive for increased production of scarce goods by reducing expected profits and by destroying the information pipeline to producers, that is, the price system.

There is no reason to think the state can handle any other terrorist or war-related emergencies better than free individuals cooperating in a free market based on property rights. The state is responding to this emergency with its usual set of tools: increased spending, inflation, reducing individual freedom, regimentation of the population, roadblocks, magnetometers, and the like. If a hammer is your only tool, every problem begins to look like a nail.

WHAT NOT TO DO

The state is punishing the entire public in an inept effort to stop a few fanatics from terrorizing us. No terrorist has laid a hand on me since September 11th. I wish I could say the same about government agents. Due to the current get tough on law-abiding people strategy, yours truly — a 43-year-old, U. S. citizen by birth, of Polish-Irish descent whose people have been here for 120 years, and an attorney who has cleared two criminal background checks — has been manhandled three times by law enforcement agents who apparently thought I could be a terrorist. Though no terrorist has picked my pocket recently, I remain "free" to give forty percent of my income to the state. If I do not "freely" contribute, I will be escorted to a place more unpleasant than a cold mountain cave. Sometimes it is hard to tell who the enemy is without a program.

The basic problem is that the state is inefficient at accomplishing goals other than the advancement of the power, wealth and prestige of those who control it. It has little incentive to do anything else. I say this, not merely as a theoretical deduction, but as a lawyer who has dealt with all branches of the federal government in the course of heated and contentious litigation. Believe me, people, the feds can be ruthless in pursuing their own interests and utterly indifferent to anyone else’s.

If you want to know the likely results of the war against terrorism, you may wish to review prior federal government "wars": the 84-year-old war on drugs, the 36-year-old war on poverty, the war in Afghanistan twenty years ago which led to the Taliban regime, the war on Serbia on the side of Osama bin Laden, and the war in Viet Nam.

The war on drugs is illustrative of the radical incompetence of those we now rely on to protect us. It has not only failed to stop or even reduce drug abuse, but has created a permanent crime wave here, and violent political chaos in drug-producing countries, like, guess what, Afghanistan! Yes, our war on drugs funneled tremendous sums of money to the Taliban and al-Qaeda.

In May of this year, the feds agreed to give the Taliban $43 million as a reward for their alleged drug eradication program. So I ask you, why would any reasonable person have confidence in a government that helped bin Laden get his start in Afghanistan twenty years ago, supported his side in Yugoslavia, supported a policy that puts millions of dollars of illegal drug money into his hands, and recently gave millions of dollars to the regime it now says protects bin Laden?

Messrs. Bush, Ashcroft, Ridge, Powell, and Rumsfeld, and Ms. Rice, cannot protect you. That was proven on September 11th. The beauty of libertarian freedom is that you have every right and opportunity to protect yourself. You have the right to bear arms! You have the right to exclude others from your property without explanation. You have the right to refuse to associate with other people, for any reason that strikes your fancy. You have the right to produce security services and sell them to others, or buy the same from other security producers. We will find in the coming years, that these rights, which only libertarians fully support, will be critical to our survival in a world made dangerous by the modern nation-state.

CONCLUSION

There is indeed a disease loose in the land, a fatal and contagious disease: the widespread belief that the modern nation-state can improve human life by means of massive aggressive force. This disease continually causes a secondary infection: terrorism, which in turn strengthens and reinforces the malady that gave rise to it. These two diseases symbiotically threaten the life of the human race.

There is an antidote — available only at libertarian and classical liberal pharmacies. We can have freedom, prosperity, and security. We need only to take the medicine prescribed by Thomas Jefferson: peace, free trade, the free market, strictly limited republican government, decentralization, and most of all, the individual rights to life, liberty, and property. Do not tarry. Recall the sad words of King Richard II, in prison and no longer in control of his fate: "I wasted time, and now doth time waste me."

November 17, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

James Ostrowski Archives

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no matter what nefarious plans Leviathan has.

Now we have these nukes and what do we do with them? What use are they? The Ukraine recently got rid of its arsenal, apparently realizing that countries with nukes are more likely to get nuked than countries without nukes. Our well-paid national security geeks are smarter than the Slavs. They figure we need nukes to protect us from the countries that produced nukes because we did, so they could destroy us after we destroyed them. Nobody wants to be dead all by himself. We needed to make them first because if we didn’t, other countries would have done so. Then, we would have had to make them to destroy other countries after they had destroyed us. These days, we need them to stop China from landing five million troops at Los Angeles. (Aren’t there already five million Chinese in L.A.?)

Truth is, I don’t know why we need nukes. The only person who does know is Edward Teller. I have never been able to decipher his accent but I gather he likes them because making the H-bomb was the all-time great power trip. Bully for him, but what about the rest of us? E. T. is scribbling Alzheimerized calculus on the walls of some nursing home’s rec room, while we have to live in a nuclearized world for the rest of our lives. Thanks, Ed!

WANTED

(For speaking engagements)

(For mass murder)

With apologies to my friend Dr. Thomas Szasz, for years I have thought that the systematic production of nuclear weapons was a manifestation of mass hysteria, a kind of collective mental illness. I have thought that the production, use or even possession of such ghastly weapons should be declared a crime against humanity and subject the guilty to the most rapid and extreme forms of punishment civilization can justify. At other times, though, I thought to myself, all these wise men who promote these weapons as the guarantor of world peace must know something I don’t. Maybe I’m the crazy one. Let’s put it this way. Let’s just say that if we survive this century (this year?) without seeing mushroom clouds rising over our greatest cities, I will have been happily proven wrong. Would you like to bet your life on it? You already have.

November 3, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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Please make a donation to help us tell it,
no matter what nefarious plans Leviathan has.

• Non-intervention tends to keep foreign disputes narrow and localized. World Wars, with their inevitable globally disastrous consequences, are avoided.
• An interventionist state is a large, powerful, and snooping state. It has a large standing army, inconsistent with the traditional republican reliance on a citizen militia. It requires heavy taxation to support the defense bureaucracy and tends towards repression of civil liberties since the warfare state cannot brook dissent.
• The warfare state leads inexorably to the welfare state as the apparent success of military central planning leads to demands for domestic central planning. Thus, from those who think society should be run like an army barracks, we get the "war on poverty", and the "war on drugs".
• Libertarians deny that such as Stalin, Clinton, Churchill, Wilson, Roosevelt, Truman, and Johnson, already busy violating the rights of their own subjects, have any training, experience or competence, in coming to the rescue of those whose rights are being violated by their own hack politicians and dictators. These gentlemen’s humanitarian rescue missions resulted in Hitler taking power in Germany, Eastern Europe being enslaved by communism, genocidal chaos in Southeast Asia, bombing Serbia back to the Stone Age, millions upon millions of civilian and military casualties, and, by the way, the current mess in the Middle East!
• Foreign intervention leads to "blowback". Because, in the words of Frederic Bastiat, people are not clay, they always react and respond to the state’s use of power against them in ways that result in unintended and negative consequences from the state’s point of view. The widespread use of state power erodes private morality, as people learn from the state’s actions and rationalizations that it is acceptable to use force against others to achieve their goals. These two factors are the foundation of modern terrorism.

Why, however, do leftists oppose foreign intervention? I got a glimpse into a possible answer when I picked up the local alternative paper. It carried an article by "Michael Moore," not otherwise identified. Later, I was able to confirm on the web that he was the Michael Moore, the moderately successful left-wing film maker.

In a long article about September 11th, he criticized Jimmy Carter’s intervention into Afghanistan in 1979. I agree with him and am glad that Carter, who managed to pack eight years of incompetence and statist evil into one four-year term, gets some of the blame for recent events. Moore’s reasoning differs from mine, though. He quotes approvingly from a book by William Blum, Rogue State:

"Besides the fact that there is demonstrable connection between the Afghanistan war and the breakup of the Soviet empire, we are faced with the consequences of that war: the defeat of a government committed to bringing the extraordinarily backward nation into the 20th century. . . " (Emphasis added.)

Bringing Afghanistan into the 20th century is exactly what the Soviet-backed government did. The Black Book of Communism, in a chapter written by Sylvain Boulouque, described how this was accomplished:

"[R]epression of the old regime’s supporters led to the death of about 10,000 people and the imprisonment of between 14,000 and 20,000 for political reasons. . . . the government began an antireligious crusade. The Koran was burned in public, and imams and other religious leaders were arrested and killed. . . All religious practices were banned, even for the tiny 5,000-strong Jewish community. . . Faced with widespread resistance, the Afghan Communists and their Soviet advisers began to practice terror on a large scale. Michael Barry describes one such incident: [the machine-gunning of 1,700 males in one village with live burial of the wounded]. . . In Kabul…torture was common; the worst form entailed live burial in latrines…u2018One hundred and fifty [Afghans] were buried alive by the bulldozers and the rest were doused with gasoline and burned alive. . . Executions in the countryside, where the Communists sought to wipe out the resistance through a genuine reign of terror, including a bombing campaign, led to the death of approximately 100,000 additional people."

After the Soviets intervened with troops in December, 1979, things changed little, mass murder-wise:

"105 villagers [in Logar Province] who were hiding in an underground irrigation canal were burned alive by Soviet troops…the searching of villages was accompanied by acts of blind barbarism, with women and old people killed if they showed any signs of fear…. Women were thrown naked from helicopters and entire villages were destroyed to avenge the death of one Soviet soldier…. Villages were also systematically bombed to prevent the resistance forces from launching any sort of counterattack. . . All evidence suggests that poison gases were used regularly against the civilian population. . .

This description of the atrocities committed by the Soviets in Afghanistan continues on, page after page, in the relentlessly clinical style of the Black Book of Communism. I’ll spare you all the nauseating details. Every trick in the Commie playbook was utilized, including poisoned water supplies, 20 million land mines injuring 700,000 people, systemic rape, grotesque forms of torture, and mock executions. Ah, the 20th century, when the flight from reason crash-landed into the slaughterhouse.

If Michael Moore, or any leftist, was asked what he thought about these atrocities, he would probably point out the hideous tactics of the Mujahideen. Likewise, if Zbigniew Brzezinski, or any neoconservative, was asked what he thought about the hideous tactics of the Mujahideen, he would probably point out the aforementioned crimes of the Communists. Can’t anyone around here give a straight answer to a simple question? I say, "A plague on both your houses."

Libertarians do join the left in opposing America’s global military empire, but we do so free of illusions about the motives of our allies. The left has a different vision of the world — a 20th century vision, unfortunately.

October 19, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

Yeah, it takes chutzpah to make the American people pay for the federal government’s screw-up with a real and symbolic move toward a police state. Let me count some of the ways the feds blew this one:

• Making enemies of one billion Muslims worldwide.
• Picking a fight with the Russians in Afghanistan.
• Helping Osama bin Laden earn his first merit badge there.
• Firing missiles at him, missing, and then forgetting about him.
• The FBI, after being tipped off about his agents coming into the U.S., does its usual incompetent job of not catching them before September 11th.
• Allowing illegal aliens to roam around freely.
• Disarming airline pilots.
• Training airline personnel to react passively to a hijacking.
• Having military bases all over the world, but being unable to protect our own people and property.
• Though the FAA was immediately aware of the hijackings, they did nothing useful.
• Oh yeah, somebody eventually called the Air Force, but they could not get their fighters up fast enough. Say what? I thought those guys could fly seven million miles per minute or have I been watching too many movies? Seriously, a plane flies from Albany to New York City and you guys can’t intercept it?

Please excuse my lack of libertarian creativity in blaming Uncle Sam. I am sure there were other federal screw-ups along the way. In any event, Uncle Alan wants us to pay for his beloved federal government’s mistakes. What a card!

There is a better way than an ID card to prove you’re a real American. Buy a shotgun.

October 15, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

Since America faces no realistic threat of invasion from a foreign army bent on taking over the country, or bent on anything else, I previously failed to see the need for this gigantic military bureaucracy. Now, I know. We needed the Department of Defense to create the need for the Department of Homeland Security! Government creates its own demand. Here’s how it works. The Department of Defense stations its troops all over the world, props up authoritarian regimes, intervenes in other countries’ internal affairs, and bombs people who have not attacked the United States.

This makes people over the world hate us and want to kill American citizens, since they can’t defeat our army on the battlefield. So they come into our country, massively murder us, and, suddenly, we need a Director of Homeland Security. In turn, if history is any guide, the new atmosphere of "internal security" will likely stifle dissent against our global military empire, making the future of the Department of Defense (of countries other than the United States) ever more secure. We can’t very well have people asking, "Why do we have 50,000 troops in Japan when we can’t even protect our own airlines or the World Trade Center?"

You may say, gee, Jim, can’t you put aside reason, logic, and morality, for a moment, and be a mindless patriot? Well, I suppose I can. Let me pitch in on this Homeland Security thing. I have studied a little history and there once was a country that was truly superb at internal security, even though they had lots of enemies, foreign and domestic. Yes, the Soviet Union really got good at Homeland Security. Here’s a checklist of some of the ideas that worked for Stalin. You may pick and choose among them as you see fit:

• "Papers, please!"
• Internal passports
• Temporary suspension of freedom of speech (only until terrorism is eliminated)
• Temporary suspension of all other civil liberties (only until terrorism is eliminated)
• Judicious use of torture (only when really necessary)
• Summary execution of anyone found with an illegal firearm
• Secret summary trials, no appeal, summary execution, summary burial

I know some of these things sound extreme, but many Americans have said recently that they are willing to sacrifice their freedom for security. You can’t make an omelet without breaking a few eggs. So be a good egg, will you?

With Mr. Inside (Ridge) and Mr. Outside (Rumsfeld) pounding away at the front line of terrorism, I am supremely confident that we will remain free — free to knock our heads against the cushioned walls of our rubber rooms, wondering whatever happened to our Jeffersonian republic with its individual freedom, distrust of centralized power, and "peace, commerce, and honest friendship with all nations, entangling alliances with none.” — and wondering why we Americans can’t muster one-tenth the courage to preserve that republic that our forebearers displayed in creating it.

Wait. I think I hear a knock on my door. The Office of Homeland Security called earlier. They wanted to ask me some questions about some of my recent articles. Reprint rights? I’ll be right back with a closing thought. . .

October 9, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

The telegenic President looked splendid and fully in charge of the occasion. Though he had been known to commit a verbal gaffe or two in his time, there would be none this day. Security was tightest, VIPs were everywhere, and the press corps was corpulent. Funny that they call it the press "corps" ("organized subdivision of the military establishment" ~ Webster’s).

The President spoke from a prepared text, undoubtedly written by others, but so expressing his true feelings that it appeared that he was formulating his words spontaneously. He called recent terrorist attacks on American citizens and military personnel "acts of war," and a threat to "our way of life" and our "democracy." He put the blame for terrorism squarely on the backs of the depraved states that allow terrorists to operate freely.

The President named names and promised coordinated action against those states. He made it clear that he believed that the terrorists who are murdering American citizens and attacking American installations are being trained, financed, and directly or indirectly controlled by a core group of radical and totalitarian governments, a new international version of Murder, Incorporated. He said the goal of the terrorists was to force America to withdraw from the world and abandon its friends. He compared their tactics to those of Nazi Germany and called on all "civilized" nations to rise up against them. He promised to bring the terrorists to justice.

The speech was well-received and frequently interrupted by applause by members of both parties. The press reacted favorably, even those who had normally opposed the President. Americans were reassured that here was a guy who was tough enough and determined enough to get the job done. Here was a President, once the object of ridicule, but now generally agreed to be able to rise to the level of the great challenge ahead. Here was a President who was committed to rebuilding a strong national defense after our forces had deteriorated during a Democratic administration. Here was a President capable of restoring respect for America after years of weakness and drift.

I had the honor and privilege of being in Washington, DC, to witness this speech in person, having cleared a rigorous security check beforehand. I will never forget this once in a lifetime, historic event. I will never forget the President’s historic speech targeting state-sponsored terrorism. Nor do I think that anyone else who was present will forget this great speech by President Ronald Reagan before the American Bar Association on July 8, 1985. After all, this was the date when the nation was assured that terrorism would soon be vanquished and our muscular, tendentious and interventionist foreign policy would not have to be "altered" or "disrupted." The Wilsonian US could continue to call the shots all over the globe without fear of retaliation against the Homeland and the Department of Defense (of countries other than the United States).”

September 25, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

Those who have reacted with such rancor to my article, and similar articles by Lew Rockwell, Harry Browne, Justin Raimondo, and others, are confused and frustrated because they are unable to refute us. One does not "justify" terrorism by explaining its roots. When Milton Friedman argued that drug prohibition encourages drug dealers to murder each other, he was not morally justifying these murders. He was only offering a logical and empirical explanation for them. The view that terrorism is a reaction to prior violence by the state is a scientific judgment, not a moral one. Nor is it a knee-jerk reaction to the recent tragedy. We have all held such views for many years. I described terrorism as a reaction to prior governmental violence in a speech given in 1993. Am I barred from repeating this long-held belief now?

I have no moral or legal qualms about tracking down the co-conspirators and punishing them. The prospect of punishment, however, will not deter those who would fly a plane into a brick wall. Further, I have little confidence that the "war" now declared will be limited to bringing the perpetrators to justice. The larger-scale strike into the heart of the Islamic world now being planned by the War Party is likely to increase terrorism, short-term and long-term, and could very well evolve into a world war, even a nuclear war. In the meantime, war is the health of the state, and the government that failed us in the first place, stands to benefit with a tremendous surge of new powers and new taxes that will take decades to roll back.

These propositions are difficult to refute; hence, the rancorous response, short on argument, long on insults. Our opponents are thereby guilty of two logical fallacies: the ad hominem attack and begging the question (assuming as true that which was to be proven). They attack the man, not the argument. More importantly, in the process, they also implicitly beg the question. Assume for the sake of argument that we are right; that these terrorist attacks and others like them are the result of our decades-long policy of violent foreign intervention. Assume the corollary, that a wide-scale violent military response with lots of civilian casualties will only result in more terrorism. Now, on these assumptions, are we not duty-bound to speak out? Would we not be cowards and traitors to the republic we hold dear if we remained silent? Are not those who would savage us and invite us to leave the country the real enemies of that republic? If all that is true, then the rancorous response begs the question by assuming, without proving, that our views on the matter are false. I say, let the debate continue over the merits of our globally interventionist foreign policy and its role in encouraging terrorism, one-sided as that debate has been.

Watching the War Party gleefully gear up for a full-scale Middle East War, I am reminded that human technical prowess has far surpassed our moral and political competence. For thousands of years, people used brute force to get what they want from other people. Our prevailing political theories and philosophies are still based on the efficacy of governmental force. Recent events suggest that view is now obsolete. The World Trade Center could have been taken out by a modern air force with multimillion dollar missiles. It was in fact destroyed by a few fanatics with box cutters. Now, our political leadership plans to deal with utterly ruthless suicidal terrorists with brute force, a language they understand only when they are doing the "talking". These terrorists want us to use massive retaliatory force; many more of them want to die to become martyrs and to encourage more legions of suicidal terrorists. The use of force as a rational act implies some degree of superiority in its use vis-à-vis the enemy. The use of force makes little sense against those capable of using equal force against you and doing so with absolute ruthlessness. I believe these people will even use force against themselves if need be. If we do get anywhere close to the likely perpetrator, his people will kill him and display the body. With the villain dead, what do we do then?

Moving from the sublime to the ridiculous — we are now hearing a mantra about the militant Islamic view of the United States. They hate us, we are told, not because of our concrete military and political interventions into the Islamic world for fifty years, but because they dislike our culture and our ideas. This line of argument is very clever. It is virtually impossible to refute. How would one refute it? A public opinion poll? "Would you fly into the WTC if the United States had not intervened into Middle East affairs for the last fifty years, just because you hate American culture?" Thank goodness that Western philosophy provides a procedural solution to the problem. He who asserts a proposition bears the burden of proof. If you claim the real enemy is Western culture, not the more obvious choice, American foreign policy, prove it! I await your arguments.

I prefer to apply Occam’s Razor here: “Never multiply explanations or make them more complicated than necessary." I prefer to believe that specific military and political interventions, known to have caused great aggravation among Arab and Islamic peoples in the Middle East, and not abstract philosophical quarrels, have caused these suicidal attacks. These attacks, from the point of view of the terrorists, could make future United States interventions less likely. They make far less sense if they are directed at Western capitalism, Christianity, rationalism, materialism, or even decadence. The only way to wipe out the entirety of Western culture is to exterminate the West entirely. The terrorists lack the means to do so, but they do face an enemy fully capable of wiping out their beloved Middle East. If it’s a philosophical fight to the last man, it makes no tactical or strategic sense, even from the demented terrorist’s point of view.

Ultimately, we can find out if the terrorists are targeting our cultural ideas or our foreign military and political misadventures. We can either (1) adopt a policy of non-intervention into the Middle East, or (2) lobotomize 280 million Americans. If you haven’t had a lobotomy recently, the choice is clear.

September 20, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

My next concern was my three close relatives who lived or worked nearby. I could not get through to my parents’ house to get news about my sister, so I drove there. Julie was okay. My nephew Joel was okay. He had watched the disaster from Midtown. My niece Amanda, attending Pace University in the shadow of the WTC, could not be reached. I headed home, stopping to vote in the Republican primary election on the way. Corny as it sounds, I wasn’t going to let those SOBs get me down.

Now I am home and the TV is on. The nonsense, lies, and evasions filled the airwaves like the dust in Downtown Manhattan. Not a single hint of the true cause of this disaster — our policy of global military intervention. No, just a bunch of jerks with axes to grind and dirty little agendas to push, not even waiting for the bodies to be recovered. From James Baker — we need to take the reins off the CIA and allow them to murder people. From another clown: we need more missiles. Huh? From another fool, Cap Weinberger, I think: we need more military spending, more troops. Others suggested that individual freedom needs to be curtailed.

Then the shell-shocked President, hiding out in some military base, showed his face and said that "freedom itself was attacked." A floating abstraction. It seemed to me that a global military empire had been attacked. But what do I know? Bush looked like he was ready to turn over the keys to the Oval Office to Al Gore.

Hours passed and there was still no mention of the likely cause of the disaster — an angry reaction to our global military empire. Instead, there was talk of Pearl Harbor. I thought to myself: this is far worse than Pearl Harbor. That was a military base in a colony. This was chaos and mass civilian murder in the real capital of America. This was Pearl Harbor and the Kennedy assassination and more and worse in one package. This changes everything forever. At least there was good news at 3:00 p.m.: my niece Amanda was safe in Brooklyn. She had not gone to school that morning.

I kept waiting for someone in authority to admit the obvious and accept responsibility. Our nation is defenseless against those who would kill us. There are many who would kill us because we have killed many, and we support other countries that have killed many, and our federal government sticks its nose into other peoples’ business in far corners of the world.

The likely perpetrators of these atrocities list their concerns as the mistreatment of Palestine and Iraq, and the quartering of American troops in Saudi Arabia, and the protection of a hated government in Egypt. Only the day after did our leading establishment columnist, George Will, unabashedly put our policy on Israel at the heart of the disaster: "The acrid and unexpungable odor of terrorism, which has hung over Israel for many years, is now a fact of American life. . . . Americans . . . are targets because of . . . their . . . loyalty to those nations that, like Israel, are embattled salients of our virtues in a still-dangerous world." He and Newt Gingrich, who almost gloated about how Americans now know what it is like to live in Israel, have it exactly wrong. One of the reasons why the odor of terrorism hangs over America as it has in Israel, is our one-sided support for Israel for over fifty years. We are not a target for terrorism like Israel; we are a target for terrorism in large part because of Israel and because of our other Middle East interventions. We have chosen to make the enemies of Israel our enemies. We have chosen to make the friends of Iraq our enemies. Will and Newt want me to know what it is like to live in Israel. Fellas, I don’t want to know what it is like to live in Israel. I want to know what it was like to live in America before September 11, 2001.

I am still waiting for someone to accept responsibility and fall on his sword. I am still waiting for someone, the President, the Secretary of Defense, the Secretary of State, the CIA director, to say, you know, when we fail, we take responsibility, and we hereby resign so that others with different and better ideas can take the country in a different direction. No such luck. Those who have created and supported our disastrous foreign policy which has led to the creation of tens of thousands of bitter suicidal enemies in the Middle East and elsewhere, accepted no responsibility. What I heard from them was, "We cannot defend you, but we will do everything we can to make sure people all over the world want to kill you."

This isn’t like Pearl Harbor. After that attack, heads rolled. They weren’t the right heads to be sure, but heads rolled. I want to see heads roll now! This hit too close to home, too close to my sister, my niece, my nephew, my old stomping grounds. I don’t want to go to New York on October 5th to argue a federal court appeal at Foley Square, and see Beirut. I am mad as hell and I am not going to take it anymore.

To all those who control our foreign policy, I say this: the United States must immediately and unequivocally get the hell out of the Middle East and the Far East and Europe and the Balkans and South America! Do you hear me, you morons?

September 14, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

Leibsohn writes, "I know of no legitimate scholar who believes Lincoln acted illegally in defending the Union." That may be because any legal scholar who so concluded in print would take himself out of the job market at 99.9 percent of all law schools in the country. Somehow I think that my essay attacking Lincoln’s invasion of the South as unconstitutional has hurt my chances of being hired at the local state university law school. Also, such writings would not enhance one’s chances of being appointed to the United States Court of Appeals or Supreme Court. The term "legitimate scholar" thus becomes a self-fulfilling prophecy since neither Mr. Leibsohn nor the legal establishment would define a Civil War critic as "legitimate."

That being said, I don’t recall seeing too many "legitimate legal scholars" who have, after detailed analysis, concluded that Lincoln acted legally. If you know of any, please let me know because I would love to read their work. This is not to say that "legitimate scholars" do not think Lincoln acted lawfully, merely that few have attempted to prove it by conventional legal analysis.

Moving on, Leibsohn seeks to portray Lincoln as a pro-life hero. He must have missed the body count from the war — over 600,000 killed. Lincoln used those bodies; he used those lives, as tools, as resources, for what? The preservation of an abstraction — "the union". And not even the abstraction the framers intended to create. No, this union was not a voluntary union of free states, but a sentence of perpetual imprisonment of the small and weaker states by the larger and more numerous ones. This union was Abe’s own megalomaniac invention. Abe was a very smart man, and he knew it, and he wanted to leave a legacy and he did, the almighty federal government which has killed 2,523,625 people in the last 150 years and which now controls virtually every aspect of our lives. "Every tree is known by his own fruit." (Luke 6:43)

Leibsohn’s discussion of the cause of the war shows how of out touch with reality the Lincoln-worshippers are: "If Lincoln launched a war, he did so merely by being elected President." The "proximate cause" of the war–as we "illegitimate" trial lawyers like to call the immediate cause of an event — cannot really be a subject of dispute. The proximate cause of the war was one thing and one thing only — Lincoln’s ordering the federal army to invade Virginia on May 27, 1861. No invasion, no war. Lincoln’s order to invade the South caused the war. Sometimes the truth is so simple that we miss it.

Why are so many confused about the proximate cause of the war? Again, since Lincoln-worship has risen to the level of a religion, the war is viewed through Yankee, Lincolnian, and Northern eyes only. We forget that Lincoln could have chosen not to invade Virginia. Thus, to determine the cause of the war, we erroneously focus on why the South seceded. Since Lincoln could have decided not to invade the South, the South’s secession cannot be the sufficient cause of the war. Why the Southern states seceded is an interesting and important question, but more important is why Lincoln ordered the invasion. Unless he is a damnable liar about the most important thing he ever did, it is beyond question that his legal justification for the invasion was the preservation of the union, a union that did not forbid slavery. That the union was thereby destroyed, not preserved, is a truth that will apparently forever elude members of the Church of Lincoln.

Lest you think I exaggerate, let me point to an example that may be compelling even for Leibsohn who attacks Roe v. Wade in his article. That decision was based on the Fourteenth Amendment, which makes the federal government the guarantor of the due process rights of citizens against the encroachments of their state governments. To quote from that opinion:

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause * * * This right of privacy [is] . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. . .

I have news for Mr. Leibsohn. The Fourteenth Amendment was forced upon the South at gunpoint by Lincoln’s troops who way overstayed their welcome. Actually, they weren’t welcome at all in Virginia in May of ’61.

As for my views on how slavery should have been ended, I cannot do better than to quote from Romans, 12-21: "Be not overcome by evil, but overcome evil with good."

August 13, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

The federal government killed Timothy McVeigh because he blew up the federal building in Oklahoma City and killed 168 people. He did this, he says, as a retaliatory act against the federal government that is responsible for the killing of 80 people in Waco, Texas.

McVeigh is dead but those whose decisions led him to undertake his government-style attack have never even been tried in court. McVeigh never offered a serious apology; neither has the federal government.

The underlying message here is morally ambiguous. We are evidently supposed to distinguish between murder by the state (which is okay) and murder by the individual (which is not okay), even though this distinction eluded federally trained McVeigh.

McVeigh has said many times that the moral code under which he was operating was one he learned in the military during wartime, when no one pays much attention to the niceties of conventional ethics and dead innocents are dismissed as collateral damage. He says his attack was u201Cmilitary styleu201D: indeed it was. Who is the mysterious John Doe Number 2, without whom McVeigh never could have pulled it off? I nominate the federal government.

In humane moral systems, any killing not strictly necessary for self-defense is considered murder and rightly punished. Before the middle of the 19th century, this was true even in war. In a just war, there must be no disproportionate damage and civilians must never be involved.

But the advent of u201Ctotal waru201D drafted everyone into government conflicts. Everyone became a target. It was only a matter of time before the same rule was applied against the state itself.

The U.S. government is well practiced at disregarding the old rules of what constitutes a just war. I did some quick figuring, with the help of R. J. Rummel and other historians. I figure that Uncle Sam has collaterally damaged 2,523,625 human beings in the last 150 years.

Photo by Ronald L. Haeberle

The dirty work involved My Lai, Waco, Hiroshima, Wounded Knee, Sherman’s March, the Trail of Tears, Kent State, Ruby Ridge, the War on Drugs, Nagasaki, No Gun Ri, Dresden, the bombing of Serbia, Indian Wars, Philippine War, forced repatriation of persons to the Soviet Union after WWII, Chinese Boxer Rebellion, invasion of the Confederacy, murder of civilians, WWII, Viet Nam, and trade sanctions against Iraq.

Violence breeds violence. When government uses indiscriminate violence, it
encourages retaliation, cheapens life, and teaches that violence is a useful
and justified means of achieving social goals. The answer to reducing
violence is not more killing, but less; better yet, none.

Our clueless media tells us that Timothy McVeigh is the biggest mass murderer in American history. Correction — with extra credit for Monday’s poisoning, the master’s body count is way ahead of the student’s: Timothy McVeigh — 168, Federal Government — 2,523,626.

June 13, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

The problem, according to the self-styled tort reformers, is that personal injury settlements and jury verdicts are too high. They say this is causing a drag on the economy due to high insurance costs and the stifling of product innovation. They point to many other countries with fewer lawyers, lawsuits, and much less generous awards. What I cannot figure out is why most of the tort reformers invest their money in American companies and avoid investing in countries with stingy tort litigation policies.

Damages for "pain and suffering" constitute the vast bulk of personal injury awards. Out of pocket loss is chump change. The reformers therefore propose eliminating or reducing damages for pain and suffering. The only problem is, some of us don’t agree with any of this. We believe we have a due process right to be compensated when someone deprives us of life and liberty, including by causing physical injury. Also, being followers of the Austrian school of economics, we are rather partial to subjective kinds of damages. Economic value is subjective after all, not monetary.

Imagine that one of these tort reformers runs into me with his car while I am walking on the sidewalk, and as a result I lose my right arm. The tort reformer says, "Here’s a hundred bucks for bandages." I reply, "What about my right arm?" He says, "No damages for pain and suffering, just out of pocket. And you’re a lawyer, you don’t need your right arm, just your left brain." I slap him in the face as hard I can with my left hand and say, "Sue me for your out of pocket."

The tort reformers think damages for pain and suffering are unjust, illusory, fraudulent, and harmful to the economy. The anti-tort reformers disagree. There is a solution, however. We can all just get along. We are told that more than half of all Americans favor legislative tort reform. They don’t have to wait for legislation, however. They can act unilaterally to drastically reduce litigation costs. I propose that every supporter of tort reform sign a document that states:

"I, Joe T. Reformer, being of sound mind and incapable of suffering or feeling pain, do hereby waive and relinquish forever, any right, claim, or benefit, to monetary damages for pain and suffering of any kind, arising out of a personal injury done to me, and I hereby release any future tortfeasor from such liability, and I consent that this document may be introduced into evidence at any court proceeding brought by me against any tortfeasor. This release applies to personal injury actions of any kind, including but limited to negligence, intentional torts (e.g., rape, assault, battery, live burial), medical malpractice, civil rights, constitutional torts, and defamation."

Tort reformers, being persons of great integrity, can be expected to sign these documents quickly and en masse. The documents can then be made available in an Internet database with the originals filed at the local county clerk’s office. With half of the people in the country waiving their right to such damages, we would cut the costs of jury verdicts and settlements in half immediately! Those who sign would also get an immediate benefit in lower insurance rates. Those who do not sign could still sue for the full measure of damages, as is their right. And we needn’t worry that the tort reformers would renege and claim they didn’t know what they were signing. That would involve such an unforgettable public display of confessed stupidity and unconfessed hypocrisy that the ex-tort reformer who does so would literally die of shame if he ever left his house.

So there you have it. You can breathe again. To get this thing started right, I suggest that our leading advocates of tort reform sign first in a very public ceremony. I will officiate, as I am a notary public with seal. Gentlemen and Ladies, you know who you are, call me!

One more thing. DO NOT put a bumper sticker on your car that says: "I WAIVE DAMAGES FOR PAIN AND SUFFERING."

April 7, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

Now consider "tort reform." A person is injured and alleges that the injury was caused by some intentional or negligent act or omission by another and the law should provide a remedy. These Republicans, who are inclined to view freedom of contract as a fundamental right, propose to limit the freedom of contract of these injured persons and their lawyers. They want to restrict or ban contingency fees which allow the injured party to hire a lawyer for free and pay the lawyer only if the lawyer obtains a damage award in court or by settlement.

How do they rationalize this seeming contradiction? They argue that freedom of contract does not apply because the interests of third parties — the proposed defendants — are "affected" because they are "coerced into litigation." It may be that real quarrel is with the individual’s due process right to sue for redress. With or without a lawyer, the injured person can sue. Yes, but these contracts make it more likely that the defendants will be successfully sued.

But it really all comes back to the merits of the case. The merits of the case are determined by the state of the law, common or statutory, how judges apply the law, and how citizen-jurors determine the facts. Why then the focus on a private contract that cannot directly impact on the merits of the case?

What if I am wrong, however? What if contingency fees really are evil and they really do, in and of themselves, violate the rights of defendants, and the law can therefore restrict them? Fine, let’s ban them, freedom of contract and the right to due process be damned.

Now, let’s shift back to campaign finance reform. Archer Daniels Midland spends millions each year to maintain the sugar quota that robs millions of dollars from Americans by preventing them from buying low-priced foreign sugar. Republicans say, this firm should be able to spend millions to advocate for the continuation of this larcenous law. Are not the interests of third parties involved? Isn’t this firm using the coercion of the state to steal money from people — people who caused no personal injury to Messrs. Archer, Daniels, and Midland — and therefore, don’t we have the right to restrict their right to freedom of speech?

On tort reform, the Republicans say we can restrict a fundamental constitutional right — freedom of contract (see, U. S. Constitution, Art. I, Sect. 10; and the 5th, 9th, 10th, and 14th Amendments)—when that freedom is used to encourage the state to take property from another by force. Yet, they have no problem with businesses exercising their constitutional right to free speech by spending millions of dollars to encourage the state to use force to violate the property rights of third parties.

How do we resolve this contradiction between the standard Republican policy positions on "tort reform" and campaign finance reform? Dare I say that these contradictory positions can be explained? The thread that seems to tie them together is that they both promote the agenda of big business. It just so happens that many of the advocates for these policy positions get their funding from Big Business. "Whose bread I eat, his song I must sing."

When people who purport to support free market capitalism actually turn out to be mere flacks for Big Business interests, they do great damage to our cause by reinforcing the worst leftist caricatures of capitalism. Personally, I could not care less what Big Business wants. I prefer to promote the agenda of individual rights and liberty, the free market and small "r", republican government.

April 3, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

All our politicians had accidentally consumed a drug that made them forget about the special interest groups that own them and made them want do the right thing for a change without being afraid they would lose the next election and have to get real jobs. Under the influence, they looked at the failed government monopoly so-called school system and saw it for what it was: a program to provide high-paying, lifetime, part-time jobs for middle class people who didn’t exactly wow them in college, at the expense of the mostly low-income students who are their captive audience for seven hours a day. They saw it as a rigid, expensive, Stalinist monster that produces barely literate, historically ignorant, uncultured, lovers of big government.

Though many of the parolees from this pedagogical prison survive the experience with their minds intact, thousands of others emerge intellectually and morally ill-equipped to function independently in today’s world. These misfits fill out the ranks of petty criminals, welfare recipients, drug users, and beggars of one form or another. Even the fittest of the survivors, however, are at risk of becoming slaves to the bureaucratic mindset which produces unthinking adherence to a set of arbitrary rules of behavior decreed by superiors in a chain of command. They become the perfectly docile subjects of our mostitarian welfare/warfare state: our democrazy.

The drugged-up politicos miraculously and for the first time in their lives realized that such a sick thing cannot be reformed, only extirpated. They abolished the government school monopoly! Instead, they made the City of Buffalo the nation’s first educational free enterprise zone. They put the parents back in charge. This irked the parents who used the government school system as a free baby-sitting service, but the politicians didn’t cave. They were on drugs, you see. They replied, "If you can’t take care of your children, don’t have any until you can!"

Then they took the money spent on governmental student warehouses each year in Buffalo — $562,000,000! — and gave the citizens of Buffalo a gigantic tax cut. That meant a per capita tax cut of over $1,800 per year. That’s an amazing $7,500 for a family of four — $225,000 over thirty years not counting interest. The tax cut made Buffalo the lowest taxed city in New York State and one of the lowest in the Northeast. The cost of living plummeted as rents and retail prices fell. There was an immediate and enormous economic boom as businesses from all over the Northeast began to relocate here. The local economy sizzled as millions of new dollars were spent or invested. There was an unexpected windfall for employers needing unskilled labor as hundreds of laid-off public school teachers, union officials and assistant deputy superintendents applied for work. More importantly, people with low and middle incomes had more money in their pockets. The tax relief was a godsend for persons on fixed incomes, particularly the elderly poor.

Meanwhile, educational entrepreneurs from all over the world traveled to Buffalo to set up shop. Buffalo became an experimental laboratory with each educational firm competing with the others for the patronage of parents and children. Every conceivable educational approach was available — from Christian to progressive to Montessori to Hebrew to high-tech to low-tech to secular to Moslem to home schooling. The National Association for the Advancement of Home Schooling moved to Buffalo.

There were even schools for people nostalgic for the old ways which featured students assaulting teachers with knives, fists and obscenities and teachers assaulting students with political correctitude, hatred of Western Civilization, and environmental wackoism. They were, alas, sparsely attended, as the parents now had to pay for such services. More sensible parents could choose from among dozens of different types of schooling, based on the particularized needs of their individual children, each unique in their talents, experiences, temperaments, and goals. There was even a consortium approach that allowed parents and students to experience a smorgasbord of different educational approaches in the same school year. Freedom was glorious; the possibilities were endless. The poet Coleridge was moved to describe Buffalo’s educational free enterprise zone as "a miracle of rare device, a sunny pleasure-dome with caves of ice!" But suddenly —

— I was jolted out of my beautiful dream by a TV news report: President Bush and Senator Kennedy had just agreed on a significant increase in federal spending and control over education. A real statist nightmare.

February 6, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.