Among libertarians
and Austrians, there is intense interest in the topic of how to
educate children. Of course we are all averse to the idea of government
schooling. This has led many libertarians to abandon government
schools in favor of private schools or home-schooling, or even the
seemingly odd approach of "unschooling."

One of the
less conventional approaches to education is that spearheaded by
Maria Montessori (1870-1952), the so-called Montessori
Method. Many libertarians may have heard of this approach because
Ayn Rand had positive
things to
say about it.

My son has
been in The Post Oak School
since he was 18 months old and is now in second grade (Lower Elementary).

Given the uniqueness
of Montessori, I'm often asked about it, by libertarians and others.
I can't claim to be an expert, but below I'll share some of my thoughts
about Montessori and related aspects of parenting.

Accreditation.
There is apparently no Montessori trademark, meaning any school
can hold itself out as being "Montessori." Some are officially
accredited
by the original Association
Montessori Internationale. These are the so-called AMI schools;
Posk Oak, for example, is one of only three or so AMI schools in
the greater Houston area. Some Montessori schools in the US are
also accredited by the American
Montessori Society (AMS).

The
history
of the split between AMI and AMS is a bit convoluted. Apparently,
after Montessori was established in Rome in 1907, by 1917 there
was intense interest in this educational approach in America. However,
the publication of the 1914 booklet The Montessori System Examined
by democratic socialist and John Dewey follower William
Heard Kilpatrick helped dampen interest in Montessori in America
for decades. Many of his arguments have since been debunked, but
only decades after it served its purpose. Montessori remained popular
in other parts of the world, but in America it went into decline,
with little AMI presence. In the meantime, American Nancy
McCormick Rambusch learned about the Montessori approach in
Europe and ended up founding the AMS. This led to AMS dominance
in the US, but there has also been an AMI resurgence in recent decades.

There are plenty
of unaccredited Montessori schools out there. Any parent considering
Montessori should make sure the school is either AMI or AMS accredited.

I know many
libertarians nowadays prefer homeschooling, but unlike certain left-libertarian
"localists" I do believe in the division and specialization
of labor, so think that an actual school can be superior
to homeschooling. The failure of government schools and even many
(government-influenced) private schools today has made home-schooling
a better option for some, which is a sad commentary on the state
of modern conventional and government schooling. If untrained moms
can do a better job than most government and conventional schools
— and it seems they can — then something is wrong with mainstream
education. In the current scheme of things, my view is that the
best solution is a good private AMI or AMS Montessori school; followed
by private and/or homeschooling (and for those who prefer homeschooling,
the Montessori approach can
still be employed). They are all, generally speaking, superior
to government schools. There is another philosophy called "unschooling"
but I find it to be unsystematic and somewhat reactionary, but even
this is probably superior in many cases to government schooling.

Focus on
the Child. Maria Montessori got her start working in the early
1900s with children with intellectual disabilities. She found that
she could "normalize" them by providing them with the
appropriate environment. ("Normalization"
is another idiosyncratic Montessori term referring to the idea that
if given the right environment, it is "normal" for all
children to
be able to shift from the "ordinary condition of disorder,
inattention, and attachment to fantasy to a state of perfect normal
being, showing such external behavior as spontaneous self-discipline,
independence, love of order, and complete harmony and peace with
others in the social situation.") Imagine what could be done
with non-disabled kids, she thought! From extensive observation
and thought she developed theories about how children develop, and
what kind of environment they need to permit them to prosper and
reach their full potential, at various stages of development. As
Montessori wrote,

The child
cannot develop if he does not have objects around him permitting
him to act. Until the present, it was believed that the most effective
learning took place when knowledge was passed on directly to the
child by his teachers. But it is really the environment that is
the best teacher. The child needs objects to act; they are like
nourishment for his spirit. [Education
and Peace, 57]

Ultimately,
this resulted in a wide array of carefully-crafted tactile material
based on the view that developing humans are heavily tactile based.
This is one reason it's hard to recreate this method in a homeschooling
environment — most parents cannot afford to provide at home the
resources and environmental provided at a Montessori school (but,
as noted above, it can
still be employed in homeschooling). This is the division of
labor. But this is not to say that the home environment is not important:
from the beginning the Montessori technique emphasizes the complementary
role of both parents and school in developing the child's full potential.

In addition,
Montessori views kids as individuals with full human rights and
status. Yes, they are at a different developmental stage, but we
treat them with dignity and respect. Witness the sushi example above.
And it is mirrored in the "positive discipline" techniques
Montessori schools promote. It is manifest in how even toddlers
are treated: they are given roles in the school, in the family —
helping set the table, clear the table, and so on within their capacities.
I was raised to think of spanking as normal; if you understand that
children develop naturally then usually if they do something that
"calls for a spanking" this is a sign the parent has gone
astray in the rearing or environment prepared for the child, or
inattention to his needs at this stage of his development (good
resources include Redirecting
Children’s Behavior and Parenting
With Love and Logic).

I will not
say I agree with every particular part of the Montessori philosophy,
as it is still a young, developing science. But what I appreciate
about it is its focus on the perspective of the child — the
developing human. The question teachers ask — and that parents are
encouraged to ask — is: what is appropriate for the child? So the
schools use child-size furniture for his environment. They provide
implements he can grasp and manipulate. The toilets are little kid
sized. Book shelves are low to the ground so kids can access material
independently (and put it back). When parents come to the classroom
for a teacher meeting, they are all sitting on half-sized furniture,
like giants. Because the room is designed for kids.

Planes of
Development. Montessori's empirical research led her to believe
that humans develop in four six-year "planes of development,"
each with its own particular learning characteristics; the environment
for each is designed accordingly. According to this view, humans
reach full maturity at around 24 years old. Each plane of development
has its own developmental stages, with the first three years of
a stage (a sub-stage) primarily geared to attainment of knowledge,
and the second three-year sub-stage focused on refinement of knowledge
appropriate to that plane.

Source: Montessori
101 Presentation, Whitby School

Source: The
Montessori Way, by Tim Seldin & Paul Epstein

Recent
research has found some scientific support for this view of
human development and for the efficacy of the Montessori educational
approach. As for anecdotal evidence, as the WSJ
blog reports, the Montessori approach produces many members
of the "creative elite," including "Google's founders
Larry Page and Sergei Brin, Amazon's Jeff Bezos, videogame pioneer
Will Wright, and Wikipedia founder Jimmy Wales, not to mention Julia
Child and rapper Sean "P. Diddy" Combs. As noted on Post
Oak's site, "A disproportionately large number of these
graduates are innovators, explorers, iconoclasts. The list includes
Nobel laureates, world leaders, successful entrepreneurs and ordinary
people — all living life with the gifts of self-awareness and intrinsic
motivation that are the legacy of every Montessori student."
And don't forget this great home-made video, I'm
in Love with Friedrich Hayek, by Dorian Electra, a recent graduate
of School of the Woods,
an AMS Montessori K-12 school here in Houston.

Teachers
as Guides. Teaches are viewed as "guides," and children
do "work" so that they learn to love the learning process
and to teach themselves. Because of this focus they are not concerned,
as conventional schools are, with the "student to teacher ratio."
After all, if a lower student to teacher ratio is better, then ideally
it's one to one. This is obviously unrealistic. But in conventional
schools you have one teacher pumping out knowledge to students sitting
in desks arrayed in a grid. The students are passive and move in
lock step. In Montessori, there are no desks; students are free
to roam about, physically unrestricted, so that they can select
the work they are interested in or need to concentrate on. The teachers
guide the students to work on their own. As explained
on the AMI site:

The Montessori
teacher's role is quite different from the role played by teachers
in many schools. They are generally not the center of attention,
and they spend little time giving large group lessons. Their role
centers around the preparation and organization of appropriate
learning materials to meet the needs and interests of each child
in the class. Montessori teachers will normally be found working
with one or two children at a time, advising, presenting a new
lesson, or quietly observing the class at work. The focus is on
children learning, not teachers teaching. Children are considered
as distinct individuals in terms of their interests, progress
and growth, and preferred learning style. The Montessori teacher
is a guide, mentor and friend.

Students
will typically be found scattered around the classroom, working
alone or with one or two others. They tend to become so involved
in their work that visitors tend to be amazed at the peaceful
atmosphere.

Because of
the role of teachers as guides, there is not the same obsession
with student-to-teacher ratio as in conventional schools.

Three-year
class groupings. Based in part on the idea of the 3-year sub-planes
of the 6-year planes of development, in Primary (years 3-6), Lower
Elementary (1st-3rd grade), and Upper Elementary
(4th-6th grade), kids are grouped into classes
spanning three years. For example, my son is now in second grade
in Lower Elementary — grades 1 through 3 are all together. One reason
for this is the idea that children in this age grouping are all
in the same sub-plane of development, so that they can share the
same environment and materials developed and appropriate for children
in that sub-plane.

Another advantage
of this approach is that the child has the same teacher for three
years. This allows the teacher (the "guide") to get to
know the children extremely well. Her reports to the parents about
the child's progress are verbal and qualitative, as opposed to quantitative.
Unlike many government schools, Montessori schools do not "teach
to the test" except as necessary to comply with mainstream
standards. They do not even give letter grades so as to induce students
to excel on their own instead of competing with classmates and judging
their success by how they compare to others. (In this recognition
of the difficulty
of quantitatively describing human actors and their character
and capacities, I see a parallel to the Austrian
notion of value as being subjective, ordinal, and not interpersonally
comparable.)

Another advantage
of this 3-year grouping is that the kids return to 2/3 of the same
class body every year. This makes for more continuity.

This approach
also gives the child a full spectrum of development over the three
years in that class: first, as a younger member of the class, they
are cared for and mentored by older children; as they mature, they
become responsible for being role models for and mentors to the
younger children. This is itself a powerful teaching model and an
incentive for the child to mature. My son and three other boys,
now in second grade, had for a while been being a bit disruptive
in class. The teacher explained to them that next year they need
to be role models for the younger kids; this prospect helped motivate
them to self-improve.

The Approach
to "Part-time." The earliest stage of AMI Montessori
is "infant community" ("Casa Dei Bambini").
It starts as soon as the child is sufficiently potty trained and
ambulatory — 14 to 18 months, say, and goes to about 3 years old,
until the child is ready for "Primary" (ages 3-6). At
our child's school, at this stage you can select full-day or half-day
infant community. Unlike other schools, where "part-time"
may be 3 days a week, M-W-F, Montessori views part-time as half-day,
morning to 11:30, all five days; and full time extends to
3pm or so. The point is that the focus is on the child: half-time
is still five days a week, for consistency from the point of view
of the child. Imagine a child going to school M-W-F: they have one
day one; one off; one on; one off; two off; one on. It's discombobulating
to the child. The idea of going every morning, M-F, is more of an
established routine for the child. My point is not that I agree
with this particular practice. It is that it is developed with careful
attention to the needs of the child, based on the child's perspective.

Fantasy
and Realism. The use of fantasy is downplayed in the early ages.
The idea is that developing young minds have insufficient context
to understand fantastical concepts; instead, initially, root them
in reality: real things, spoons, cups, objects. As explained here:

In Montessori
fantasy and imagination are very much a part of the creative process.
However, since the real world is seen as a wonderful creation
as it is, children are introduced to the real world in all its
variations in the first six years, and then use these experiences
to create for the rest of their lives. The word "work"
is used to describe the child's activities instead of "play"
because they as respected as adult activities.

Again: whether
they are right or wrong on this particular issue is not my point
(the Waldorf
method takes the opposite
approach to fantasy); it is that it is developed with a careful
attention on the child's natural needs. I actually did introduce
fantasy to my child very early, but I was conscious of the notion
that he might not yet have the context to understand all of it,
and made sure he had exposure to the "realistic" things
too.

Reading
and Writing. One of my favorite things about Montessori is its
approach to learning reading and writing. Following a blend of these
ideas (see Montessori
Read and Write) and Glenn Doman's How
To Teach Your Baby to Read, I taught my own child to read
at a very young age. There
are several aspects to the Montessori approach:

• Do not teach
  kids the names of letters. This is a key insight. Just
  teach them how the letter sounds, and what it looks like. So if
  you point to the letters of the alphabet, you would say, "aah,
  buh, little-kuh (to distinguish c, "little-kuh,"
  from k, "big-kuh"), duh, eh, eff, guh,"
  and so on.
• Writing
  is sometimes taught before reading. The idea is that "young
  children will often be able to write (encoding language by spelling
  phonetic words out one sound at a time) weeks or months before
  they will be able to read comfortably (decoding printed words)."
  And if you manage write a word, then you can read it — you know
  what you wrote. So strangely, by learning to write you can help
  teach yourself to read.
• Cursive
  is taught before printing. Cursive, as I understand it, is not
  even taught anymore in some schools, which is a shame. In Montessori,
  it's taught first, since children are able to make the flowing
  motions of cursive more easily then print letters.

(Incidentally,
the Suzuki
method of learning music — typically violin or piano — is similar
in some ways to the Montessori approach to language — children learn
to play by learning what keys make what sounds, without at first
bothering to learn the names of notes. Unsurprisingly, Montessorians
often recommend the Suzuki method.)

The Crib.
I didn't start learning a lot about Montessori until my son was
about 9 months old. If I had learned earlier I would never have
bothered to use a crib at all. As it was, we took him out of the
crib at 11 months and got rid of it — we put the crib mattress on
the floor in the corner, and he slept on that. Why lock a kid up
in a crib, as if he's in jail? Why restrict his freedom of movement,
his ability to explore? (And cribs are dangerous, too — many babies
fall out or get caught in the slats.) As Maria Montessori wrote:

When the
child is given freedom to move about in a world of objects, he
is naturally inclined to perform the task necessary for his development
entirely on his own. Let us say it straight out — the child wants
to do everything all by himself. But the adult does not understand
this, and a blind struggle begins. The child likes neither to
play idly, nor to waste time doing useless things, nor to flit
about aimlessly, as most people believe. He seeks some very precise
goal, and he seeks it with an instinctive directness of purpose.
This instinct that impels him to do things by himself makes it
incumbent upon us to prepare an environment that truly allows
him to develop. When he has freed himself of the oppressive adults
who act for him, the child also achieves his second goal,
working positively toward his own independence. [Education
and Peace, 55]

And if he rolls
off the mattress in the middle of the night, he can crawl back on
— giving him self-responsibility, independence, and self-reliance.

As noted in
the Michael Olaf The Joyful Child catalog:

Every child
follows a unique timetable of learning to crawl to those things
he has been looking at, so that he may finally handle them. This
visual, followed by tactile, exploration is very important for
many aspects of human development. If we provide a floor bed or
mattress on the floor in a completely safe room — rather than
a crib or playpen with bars — the child has a clear view of the
surroundings and freedom to explore.

A bed should
be one which the baby can get in and out of on his own as soon
as he is ready to crawl. The first choice is an adult twin bed
mattress on the floor. Besides being an aid to development, this
arrangement does a lot to prevent the common problem of crying
because of boredom or exhaustion.

It helps
to think of this as a whole-room playpen with a baby gate at the
doorway and to examine every nook and cranny for interest and
safety. If the newborn is going to share a room with parents or
siblings we can still provide a large, safe, and interesting environment.

Eventually
he will explore the whole room with a gate at the door and then
gradually move out into the baby-proofed and baby-interesting
remainder of the house.

See also Designing
a Montessori Infant Environment at Home.

New parents:
save your money. Don't buy a crib. All you need is a mattress, in
a safe room. For a newborn, I believe a bassinet is placed on the
mattress, until the baby is ready to be on the mattress itself.

Lunch and
Homework. For a few miscellaneous observations — in conventional
schools I've heard of, the teacher might assign homework on Monday
that is due Tuesday, and on Tuesday, homework that is due the next
day, and so on. In my kid's school, homework for lower elementary
students is assigned on Monday, and due Thursday. It's up to the
kid to decide how to manage his time during the week and get it
done. This helps teach responsibility and time management.

Also, although
The Post Oak School is not inexpensive, there is no lunchroom and
no meals provided. The child is expected to prepare his own lunch
(with parental supervision or assistance) every morning. This teaches
awareness of nutrition and self-reliance and responsibility.

Peace.
One of the most fascinating features of the Montessori philosophy,
for libertarians, was Maria Montessori's passionate devotion to
peace. This can be seen in the schools, where kids are taught
that they are all members of the human family, that we are children
of the world, and that we should respect each others' individual
rights. They are taught cooperation and responsibility, and to respect
others. Some Montessori schools go out of their way to encourage
mediation- or arbitration-like dispute resolution (see my LRC post
Out
of the Mouths of Babes). See the video Education
for Peace: The Essence of Montessori (embedded below).

But the Montessori
approach to peace is much more than this. The idea of peace is deeply
embedded into its entire educational approach. Maria Montessori
believed there were several reasons the human race had not yet achieved
peace. One was a false idea of peace as merely the cessation of
war. She discusses this in detail in her amazing book Education
and Peace. As she notes there,

Human history
teaches us that peace means the forcible submission of
the conquered to domination once the invader has consolidated
his victory, the loss of everything the vanquished hold dear,
and the end of their enjoyment of the fruits of their labour and
their conquests. The vanquished are forced to make sacrifices,
as if they are the only ones who are guilty and merit punishment,
simply because they have been defeated. Meanwhile the victors
flaunt the rights they feel they have won over the defeated populace,
who remain the victims of the disaster. Such conditions may mark
the end of actual combat, but they certainly cannot be called
peace. [pp. 6-7]

This was presciently
written in 1932, as the false "peace" of WWI was sowing
the seeds for WWII.

Montessori
also lamented the lack of a science of peace: "it is
quite strange, in fact, that as yet there is no such thing as a
science of peace, since the science of war appears to be highly
advanced, at least regarding such concrete armaments and strategy
…." (p 5). This is echoed in a moving and insightful 1985 article
by John Bremer, who writes: "From my little knowledge of eastern
thought, it appears quite possible for a discipline of peace to
exist already, and I mean a discipline for a way of life and not
an academic discipline." ("Education
as Peace" N.A.M.T.A. Quarterly 11, no. 1 (Fall 1985),
p. 26.)

If it is true
that libertarians can profit from Montessori's educational insights,
it is also true that Montessorians searching for a science of peace
can stop looking: this is what libertarianism is. Libertarianism
recognizes the world of scarcity that we inhabit gives rise to conflict
and war, and the solution is the adoption of civilized rules of
cooperation and allocation of property rights — a libertarian private
law society. If Montessori had been apprised of the insights of
Austrian, free market economics and of anti-state, pro-peace liberalism,
who knows — maybe she would have become a key advocate of libertarian
views.

Skepticism
of statism, individualism, and love of freedom permeates the Montessori
perspective. It is worth quoting at length from Bremer's piece:

Maria Montessori
… knew that education, properly understood, is a disturbance of
the universe as it is conventionally conceived and experienced.
It places the power structure at risk since there is the
strong possibility that it will be exposed for what it is — an
imposition upon the sacred order of things, a distortion of
what is natural, for the supposed benefit of those not willing
or not able to learn. She also understood more clearly than any
of her contemporaries that if the perversion of the natural order
of things is to be maintained by the power establishment, then
the soul must also be perverted because it is the one power, the
one course of energy in the universe that is able to see and to
show the corruption and perversion of the whole and to correct
it. This perversion of the soul arrogated to itself, for obvious
rhetorical advantage, the name of education. In reality, it is
what was characterized earlier as a form of indoctrination, and
it rests upon an imbalance, an inequality of power.

The key to
Montessori is contained in the two sayings which are more often
repeated than argued about and understood — "Follow the child"
and "Look to the child."

… The fundamental
fallacy of conventional apologetics in education is [that] if
the teacher establishes control, the students can learn. … This
fundamental educational fallacy has, of course, its political
counterpart. How could it be otherwise when in conventional opinion
"education" is a sub-branch of "politics"?
The basic political fallacy is that if people are controlled "by
proper authority" then they will improve. I suppose they
might improve as sheep but scarcely as human beings, as citizens.

… [I]n our
international relations we will have to learn whatever the counterpart
is of "Follow the Child" and of "Look to the Child."
It is possible that we will come to see, eventually, the nation
state for what it is — an extensive defence mechanism against
learning, and we may find some new pattern of human organization
which will simultaneously offer security and the opportunity to
learn. Just as Montessori diplomas are different from ordinary
credentials, I suspect that Montessori diplomacy may be of a different
order from that played by the brinksmanship of Kissinger and the
like.

… I rest
my confidence in the knowledge that if power corrupts and absolute
power corrupts absolutely, then learning liberates and universal
learning liberates universally. And universal learning is peace
in action. [pp. 33-34]

Note the keen
recognition of the state's lies and corruption and use of education
for propaganda. It is thus no surprise to learn that Maria Montessori,
as the Inspector of schools in Italy, refused to use the education
system to produce soldiers for Mussolini. As noted here:
"In 1922 she was appointed Inspector of Schools in Italy. She
lost that position when she refused to have her young charges take
the fascist oath as the dictator Mussolini required." More
detail is provided here:

in 1929 Montessori
opened the Association Montessori International in the Netherlands,
with another center following in 1947 in London. The political
world had its own affairs in the works however, most notably the
rise of fascism in Italy and the spread of Germany’s Nazi regime.
Montessori found herself under dire pressure to turn her schools
into training centers, to mass-produce soldiers for the war. Naturally
she refused, and for a brief time she and son Mario were interred.
Freed and then exiled by Mussolini, they fled from Italy, taking
refuge initially in Spain and India, and finally the Netherlands.

Montessori
believed the reason we have war, and not peace, is not only because
of false conceptions of peace, but because the nature of the child
was neglected during education, leading to moral paralysis and morally
stunted individuals who have no defenses to resist the state's propaganda
and demands for war. And the reason for this was a misconception
regarding the nature of the child and his relation to the adult,
and about the proper method of education.

As she wrote:

The child
and the adult are two distinct parts of humanity which must work
together and interpenetrate with reciprocal aid.

Therefore
it is not only the adult who must help the child, but also the
child who must help the adult. Nay more! In the critical moment
of history through which we are passing the assistance of the
child has become a paramount necessity for all men. Hitherto the
evolution of human society has come about solely around the wish
of the adult. Never with the wish of the child. Thus the figure
of the child has remained outside our mind as we have built up
the material form of society. And because of this the progress
of humanity may be compared to that of a man trying to advance
on one leg instead of two. [Quoted in E.M. Standing, Maria
Montessori: Her Life and Work (1998 [1957]), p. 81.]

A key insight
by Montessori here is the realization that children create the
adult.

Each of
us has not always been a grown-up person; it was the child who
constructed our personality. Before we became the important adult
personage we are now, the respected member of society, we were
another personality — very different, very mysterious — but not
considered by the world, at all; not respected; of no importance
whatever; with no say in the running of things. Yet all that time
we were really a personality capable of doing something that we
cannot do now. He who is the constructor of man can never be a
person of no importance. He is capable of doing something great,
like a seed. It is only when w realize the wonderful way in which
the child creates the man that we realize, tat the same time,
that we hold in our hands a secret by which we can help in the
formulation of a better humanity. (Just the opposite of a secret
weapon to destroy it." (Quoted in Standing, Maria
Montessori: Her Life and Work, pp. 157-58.)

In sum, Maria
Montessori argues that the only way to reach world peace is to educate
the young according to their nature, to produce naturally peaceful
"citizens of the world." Her vision is grandiose and her
language grandiloquent, metaphorical, and flowery. But she is right.
This is exactly is why I think economic education, in particular,
is so important. Maria Montessori's vision, I think, was of a Montessori-type
educational system sweeping the world and transforming the next
generation, so that when they matured, the world would reach a state
of peace and cooperation (though I have not found any formulation
so explicit; she was probably too modest). A grand, ambitious vision,
to be sure, but one to be admired. In fact Maria Montessori was
nominated three
times for the Nobel Peace Prize.

Whether her
particular educational methods are "the way" to unlock
the civilized potential of budding humans, I do not know. But, as
always, hope is with the young — something recognized by Montessorians
and libertarians alike. And on that note, I'll close with the closing
words of E.M. Standing's biography of Montessori:

It is along
this path that the nations of the world will progress most surely
towards that harmony foretold by the prophet, when "the wolf
shall dwell with the lamb, and the leopard lie down with the kid,
and the calf and the young lion and the fatling together — and
a little child shall lead them." [p. 370]

Further
Reading

• Education
  and Peace, by Maria Montessori (hard to find for
  a good price on Amazon; I found this and others by Montessori
  at
  Nienhuis).
• The
  Montessori Way, by Tim Seldin & Paul Epstein.
• Montessori:
  A Modern Approach and Montessori
  Today: A Comprehensive Approach to Education from Birth to Adulthood,
  by Paula Polk Lillard.
• Michael
  Olaf catalogs: The Joyful Child (birth to age 3) and
  Child of the World (3 to 12 years) (yes, catalogs;
  it has wonderful mini-articles sprinkled throughout).
• Trevor Eissler,
  Montessori Madness:
  A Parent to Parent Argument for Montessori Education.
• Why
  Montessori?, information and links from The Post Oak School.
• Montessori,
  Dewey, and Capitalism: Educational Theory for a Free Market in
  Education, by Jerry Kirkpatrick (I haven't read this one
  but the description looks interesting: "Synthesizing ideas
  from such disparate thinkers as educator Maria Montessori, philosophers
  John Dewey and Ayn Rand, and Austrian economist Ludwig von Mises,
  Montessori, Dewey, and Capitalism presents a philosophy of education
  — the theory of concentrated attention and independent judgment
  — that requires laissez-faire capitalism for its full realization.")
• Rand and
  Montessori: Marsha Enright, "Foundations
  Study Guide: Montessori Education" (the Atlas Society);
  Michael S. Berliner, "Ayn
  Rand and her thoughts on Rational Education"; "Ayn
  Rand and Maria Montessori."
• Positive
  discipline techniques: Redirecting
  Children's Behavior, by Kathryn J. Kvols; Positive
  Discipline, by Jane Nelsen; and Parenting
  With Love And Logic, by Foster Cline & Jim Fay (all
  of which I've read, tried to implement, and highly recommend).

April
28, 2011

Stephan
Kinsella [send him
mail] is an attorney in Houston, director of the Center
for the Study of Innovative Freedom, and editor of Libertarian
Papers. His website is www.StephanKinsella.com.

©
2011 Stephan Kinsella

The
Best of Stephan Kinsella

Property, Rights, and Liberty

Libertarians tend to agree on a wide array of policies and principles. Nonetheless, it is not easy to find consensus on what libertarianism’s defining characteristic is, or on what distinguishes it from other political theories and systems.

Various formulations abound. It is said that libertarianism is about individual rights, property rights, the free market, capitalism, justice, or the nonaggression principle. Not just any of these will do, however. Capitalism and the free market describe the catallactic conditions that arise or are permitted in a libertarian society, but do not encompass other aspects of libertarianism. And individual rights, justice, and aggression collapse into property rights. As Murray Rothbard explained, individual rights are property rights. And justice is just giving someone his due, which depends on what his rights are.

The nonaggression principle is also dependent on property rights, since what aggression is depends on what our (property) rights are. If you hit me, it is aggression because I have a property right in my body. If I take from you the apple you possess, this is trespass — aggression — only because you own the apple. One cannot identify an act of aggression without implicitly assigning a corresponding property right to the victim.

So capitalism and the free market are too narrow, and justice, individual rights, and aggression all boil down to, or are defined in terms of, property rights. What of property rights, then? Is this what differentiates libertarianism from other political philosophies — that we favor property rights, and all others do not? Surely such a claim is untenable.

After all, a property right is simply the exclusive right to control a scarce resource. Property rights specify which persons own — that is, have the right to control — various scarce resources in a given region or jurisdiction. Yet everyone and every political theory advance some theory of property. None of the various forms of socialism deny property rights; each version will specify an owner for every scarce resource. If the state nationalizes an industry, it is asserting ownership of these means of production. If the state taxes you, it is implicitly asserting ownership of the funds taken. If my land is transferred to a private developer by eminent domain statutes, the developer is now the owner. If the law allows a recipient of racial discrimination to sue his employer for a sum of money, he is the owner of the money.

Protection of and respect for property rights is thus not unique to libertarianism. What is distinctive about libertarianism is its particular property assignment rules: its view concerning who is the owner of each contestable resource, and how to determine this.

Property in Bodies

A system of property rights assigns a particular owner to every scarce resource. These resources obviously include natural resources such as land, fruits of trees, and so on. Objects found in nature are not the only scarce resources, however. Each human actor has, controls, and is identified and associated with a unique human body, which is also a scarce resource. Both human bodies and nonhuman, scarce resources are desired for use as means by actors in the pursuit of various goals.

Accordingly, any political theory or system must assign ownership rights in human bodies as well as in external things. Let us consider first the libertarian property assignment rules with respect to human bodies, and the corresponding notion of aggression as it pertains to bodies. Libertarians often vigorously assert the "nonaggression principle." As Ayn Rand said, "So long as men desire to live together, no man may initiate — do you hear me? No man may start — the use of physical force against others." Or, as Rothbard put it:

The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the "nonaggression axiom." "Aggression" is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion.

In other words, libertarians maintain that the only way to violate rights is by initiating force — that is, by committing aggression. (Libertarianism also holds that, while the initiation of force against another person’s body is impermissible, force used in response to aggression — such as defensive, restitutive, or retaliatory/punitive force — is justified.)

Now in the case of the body, it is clear what aggression is: invading the borders of someone’s body, commonly called battery, or, more generally, using the body of another without his or her consent. The very notion of interpersonal aggression presupposes property rights in bodies — more particularly, that each person is, at least prima facie, the owner of his own body.

Nonlibertarian political philosophies have a different view. Each person has some limited rights in his own body, but not complete or exclusive rights. Society — or the state, purporting to be society’s agent — has certain rights in each citizen’s body, too. This partial slavery is implicit in state actions and laws such as taxation, conscription, and drug prohibitions.

The libertarian says that each person is the full owner of his body: he has the right to control his body, to decide whether or not he ingests narcotics, joins an army, and so on. Those various nonlibertarians who endorse any such state prohibitions, however, necessarily maintain that the state, or society, is at least a partial owner of the body of those subject to such laws — or even a complete owner in the case of conscriptees or nonaggressor "criminals" incarcerated for life. Libertarians believe in self-ownership. Nonlibertarians — statists — of all stripes advocate some form of slavery.

Self-ownership and Conflict-avoidance

Without property rights, there is always the possibility of conflict over contestable (scarce) resources. By assigning an owner to each resource, legal systems make possible conflict-free use of resources, by establishing visible boundaries that nonowners can avoid. Libertarianism does not endorse just any property assignment rule, however. It favors self-ownership over other-ownership (slavery).

The libertarian seeks property assignment rules because he values or accepts various grundnorms such as justice, peace, prosperity, cooperation, conflict-avoidance, and civilization. The libertarian view is that self-ownership is the only property assignment rule compatible with these grundorms; it is implied by them.

Read the rest of the article

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

The Best of Stephan Kinsella

Austrian libertarians, more than most, should be acutely aware of the impossibility of coming up with a truly objective "top ten" list. Smith’s most valued book may be far down on Jones’s subjective rankings. Nonetheless, we forge ahead because such lists can be provocative, illuminating, and interesting. So in response to "The Ten Best Libertarian Books" from the September 2006 issue of Liberty, which provoked some discussion on the Mises blog, I’ll offer my own admittedly idiosyncratic and personal choices — books or authors I consider great or notable, or that have had some significant influence in my own intellectual development.

Great Libertarian Books and Authors

Hans-Hermann Hoppe, A Theory of Socialism and Capitalism. Topping my list is A Theory of Socialism and Capitalism, as well as a host of other works, by Hans-Hermann Hoppe, our greatest living intellectual. Hoppe’s other influential works include Democracy: The God That Failed, The Economics and Ethics of Private Property, and Economic Science and the Austrian Method. Sure, Hoppe stands on the shoulders of giants — primarily Mises and Rothbard — but to my mind his edifice of thought is the pinnacle of Austro-libertarian thinking. Somewhat sobering is the realization that Hoppe was only forty when he wrote Capitalism. Gulp.

Ludwig von Mises, Human Action. And his other works too, including another of my favorites, The Ultimate Foundation of Economic Science. Arguably the greatest genius of the twentieth century, if not all of human history. Need anything else be said?

Murray N. Rothbard, The Ethics of Liberty. And Man, Economy and State, Power and Market, For A New Liberty, and countless other works. The Mises-Rothbard-Hoppe troika are the standard-bearers for modern Austro-libertarianism. I’m tempted to call them the Austro-libertarian trinity, but to avoid offense, I’ll refrain.

Henry Hazlitt, Time Will Run Back. Okay, okay, I know it’s not a great novel, but it’s a favorite of mine. An illuminating tale of a dictator slowly appreciating the limits of centralized socialist planning. And Hazlitt’s Economics in One Lesson is one I often recommend as a starting point for a novice interested in learning more about the freedom philosophy. As is my next choice —

Llewellyn H. Rockwell, ed., The Free Market Reader: Essays in the Economics of Liberty. This underappreciated selection of classic short pieces — mainly by Rockwell and Rothbard — from The Free Market is a fantastic introduction to sound economic thinking. See also the followup, The Economics of Liberty.

Frederic Bastiat, The Law. Another great introductory book. They don’t make ‘em like they used to.

Milton Friedman, Capitalism and Freedom. I might now find things I don’t agree with in this magnificent book — perhaps whiffs of positivism, insufficient radicalism — but, for me, reading it was eye-opening and helped deepen my budding appreciation for libertarianism and free market economics.

Linda &
Morris Tannehill, The
Market for Liberty. For minarchists and mainstreamers,
a mindblowing introduction to the possibilities of non-state order
and liberty. David Friedman’s The
Machinery of Freedom: Guide to a Radical Capitalism
complements the Tannehills’ book well, as does "Imagining a Polycentric
Constitutional Order: A Short Fable," chapter 14 of Randy
Barnett‘s The
Structure of Liberty. Something
about Friedman’s Machinery always bugged me — maybe it was
the way he noted that Hazlitt’s Economics in One Lesson is
"reputed" to be a good introductory book on economics, but
"I have not read it" — as if he does not need to. From someone
with degrees only in physics and chemistry, I suppose I would have
expected a bit more humility; and his over-reliance on "law and
economics" has always made Friedman seem just a tad too much
the dilettante and Austro-cynic for my taste. Nonetheless, Machinery
has to be mentioned here.

Lysander Spooner, No Treason No. VI: The Constitution of No Authority. An eye-opening expose to the lies spread by contractarians and constitutionalists.

James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia. The works noted above are all by libertarians or proto-libertarians (e.g., Spooner and Bastiat). Kilpatrick was no libertarian but this work is probably one of the best non-fiction books I’ve ever read, and reading it would be immensely valuable to all libertarians today, especially those who too readily condone state centralism. See, for example, this brief excerpt on the Kentucky and Virginia Resolves, and the federal judiciary. And consider this passage, describing the Supreme Court’s illegitimate expansion of power under the guise of the Constitution’s interstate commerce clause:

It was an insidious process, conducted with the care of the cat that stalks her prey — now creeping forward, now pausing to sniff the air; now advancing, now lying still as the bird takes alarm; then edging forward again, and so, step by inexorable step, moving to the ultimate seizure. [p. 235]

Sounds a lot like the tactics used by the left over the last several decades, doesn’t it? Kilpatrick may not have been a libertarian, perhaps, but this book is great libertarian ammunition. Would that this were required reading in all law schools, if not all high schools.

Honorable Mention

There are of course many others that could be listed, but they can’t all be on the "greatest" list. Some are too recent/modern, or too narrow (e.g., too American-centric), but are still high on my list. These include Jan Narveson’s The Libertarian Idea and Loren Lomasky’s Persons, Rights and the Moral Community. There’s much to disagree with in both books, but each has a load of provocative insights.

Those who find Kilpatrick’s work of interest might also profit from Felix Morley’s Freedom and Federalism and Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment, as well as his The Fourteenth Amendment and the Bill of Rights and Federalism: The Founder’s Design. Bruce Benson’s The Enterprise of Law also seems destined to be a classic, and would be appreciated by those who like the Tannehills. I also suspect George Reisman’s massive tome Capitalism deserves to be in any “greatest” list, but I haven’t absorbed it completely enough to make this judgment yet.”

And if I were not growing increasingly distant from Rand’s thought and annoyed by many of her modern-day followers, I’d probably include on the list above Atlas Shrugged, Philosophy: Who Needs It, and Capitalism: The Unknown Ideal.

Fiction

Speaking of fiction, other than Hazlitt’s Time Will Run Back, I just can’t bring myself to include any among the company of the "greats" listed above, but there is some I’ve found very enjoyable as well as illuminating portraits of possible libertarian societies: these include Heinlein’s The Moon is a Harsh Mistress, of course Rand’s Atlas Shrugged, J. Neil Schulman’s Alongside Night, L. Neil Smith’s The Probability Broach and The Gallatin Divergence, and my newest favorite novelist, John C. Wright, author of the sci-fi trilogy The Golden Age.

Didn’t Make the Cut

As for others that just don’t come close to making my cut: some rave about Herbert Spencer’s The Man vs. the State. Hey, I just can’t get past the annoying use of "the" in the title. Reminds me of the affectation of referring to "the calculus." Other purportedly "great" books or authors that I just can’t seem to motivate myself to read or finish include Adam Smith, The Wealth of Nations, Isabel Paterson’s The God of the Machine, Rose Wilder Lane’s The Discovery of Freedom, Hayek’s Road to Serfdom (and other works), John Stuart Mill, anything by anyone who ever even flirted with Georgism or Galambosianism, "mutualism," or "conjecturalism/anti-justificationism."

The interested reader can find many other very interesting recommendations in the LRC bibliographies — see especially Hans-Hermann Hoppe on Anarcho-Capitalism, David Gordon on Liberty, and Lew Rockwell on Reading for Liberty.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

Milsted, who runs the website "Holistic Politics" (res ipsa loquitur), argues that we libertarians are uncomfortable with government because "Taxation is theft". On the other hand if we "call[] for no government" we are "subject[ed] to ridicule." So we libertarians face a dilemma: damned if we do, damned if we don’t.

Apparently, being subjected to ridicule is undesirable — perhaps it is not a good way to "get things done." (See the activist mindset creeping into a question of what our rights are; whether aggression is justified?) So Milsted wants to cut the Gordian knot by abandoning the ridiculous opposition to theft and state, assuming he can find a way to justify it. Here we have the activist or tactical mindset making Milsted look for a way to justify theft: here is where utilitarianism enters the picture. Both activism and utilitarianism push principle to the side as a nagging inconvenience. There is no room for principle in the ultra-pragmatic ever-shifting weighing and balancing of utilitarianism; and activists want results, and now!, damnit, not principles.

Milsted concludes that we have to "allow some theft to enable the minimal state that maximizes liberty." He bases this conclusion on the idea that if a given act of theft creates enough surplus value to be able to "adequately compensate" the victim, then it’s worth doing and justified — the victim is made whole, and the rest of society is made better off. For example, in the case of national defense, or "country roads," because of "economies of scale," government can do these things more cheaply, so that, if

the majority assesses a tax on everyone to spread the burden of supporting the new defense system. This is theft of the minority. However, suppose that the economies of scale are such that this tax is less than half of what people would have had to pay for defense on their own. Now we have theft with adequate compensation.

Aside: I have long noticed that many brash young libertarians of the activist flavor who are not all that interested in theory and What Has Gone Before are — perhaps influenced by Rand? — often unfamiliar with the great body of libertarian literature and want to reinvent the wheel from a clean slate (many engineers, in my experience, take a similar pragmatic, isolated, almost anti-intellectual approach in their views on politics). Now I don’t know if this observation applies to our current author, but he does seem blithely unaware that his stab at theory is nothing more than a rudimentary version of what utilitarian legal theorist Richard Epstein proposed in his book Takings: Private Property and the Power of Eminent Domain.

Anyway, Milsted tries to justify his reasoning by appealing to Rothbard:

In the Bible, a thief was supposed to pay double. Should he do that, he can go free. Murray Rothbard called for the same principle in The Ethics of Liberty. In other words, theft is morally acceptable if all victims are paid back double.

Milsted’s "in other words" does not follow from Rothbard’s reasoning, nor is it correct. Rothbard was merely arguing for a certain standard for restitution after a crime has happened. As should be quite obvious, specifying the standard for damages payable for a crime most certainly does not mean the crime is "morally acceptable." If it did, this would imply that if someone is trying to take my property I have to let them if they offer me enough money. But this is untrue. The standards for what can be done to stop a crime and what should or may be done after it is too late to stop it are different. If someone tries to take my car, I may use force against them to stop them; I would argue it is justified to kill them, if necessary, to prevent the crime. After the crime is committed, however, killing the criminal won’t prevent it, so, arguably, the only remedy left is some form of restitution. This does not mean that the restitution justifies the crime, however.

In fact, if theft is morally acceptable if enough restitution is paid, the same reasoning would apply to all crimes, including murder, rape, and torture. By this reasoning, if a billionaire can pay your heirs millions of dollars in compensation for torturing you to death against your will, his act of murder is morally acceptable.

Here Milsted perhaps unwittingly takes utilitarianism to a reductio ad absurdum, saving his critics the trouble. As has been pointed out many times, the utilitarian standard would permit, for example, a very desperate rapist to rape a woman of loose morals, since the damage to her is arguably small (by utilitarian standards) and the benefit to him great, providing a net benefit to society; or a rich man to be taxed to support the poor, since the money means so much more to the destitute than to the one rich man. And so on. Utilitarians usually deny the aptness of such reductios, but Milsted here seems to embrace it.

In my view, our author’s argument here demonstrates the perils of thinking in utilitarian terms — you start thinking that an act of crime is okay so long as some people benefit from the crime more than the victim suffers. The focus on individual rights is lost, as is the distinction between victim and aggressor.

In any event, the appeal to utilitarianism is problematic on several fronts. It is, first and foremost, ethically bankrupt because it is an unproven, and indeed, false, assertion that it is justifiable to rob one man if the robbery benefits others. It is also economically incoherent because the subjective and ordinal nature of value makes it impossible even in principle to ever determine whether a given invasive action results in a "net" benefit or "surplus" (see on this Rothbard’s Toward a Reconstruction of Utility and Welfare Economics).

Moreover, even if we assume away the ethical and methodological problems with using a utilitarian standard, it would be completely unworkable in practice, given the corrupt nature of government; and indeed, as with the utilitarian case for intellectual property, those who assert this or that measure is a "net benefit" don’t ever make a serious attempt to show that it really is. Instead, they say, "defense" is "obviously" a public good, and satisfies the test; "roads" are "easy cases"; and so on. They can never tell you in dollar or util terms what the alleged surplus is; they just know there is one. And they never make a serious attempt to take into account all the costs. For example, even if utilitarianism made sense, and even if we assume that national defense and public roads led to surpluses that could be used to compensate the victims (Epstein analogizes this to measures that increase the "size of the pie"), why assume that the state, once given the power to engage in wealth transfers, will restrict itself only to "efficient" takings? Surely there is a real risk — even inevitability — that the state will not restrict itself to the few things it "ought" to be doing.

Additionally, even if the state engages only in "efficient" activities, what about mushrooming costs of these activities? Let’s say national defense benefits citizens more than the taxes to pay for it cost them (and that it would be more expensive to buy defense on the free market). Does this still hold true a decade down the road, when the state decides to use its restless army for imperialist ambitions? Or when the use of the army provokes a war, which leads to the state imposing conscription? And so on.

In other words, utilitarianism is both ethically bankrupt as well as economically incoherent (see pp. 12—15 of this article for further references). It cannot serve to justify theft.

The focus on tactics and strategy also leads to confusion about libertarian principles. Writes our author,

Libertarians have a serious dilemma. Either we make a Machiavelli [sic] trade-off and allow some theft to enable the minimal state that maximizes liberty, or we plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations. The former makes us uneasy. The latter subjects us to ridicule. 99+% of the people consider anarchy to be too risky to be attempted.

Not surprisingly for a big-L Libertarian, Milsted’s focus is on strategy, tactics, activism, and rhetoric. Such a focus often leads libertarians to confuse "what persuades people" with "what is true." We principled libertarians have no problem recognizing the difference between what is right and true, with what is likely and what we can get away with. They are different questions. But strategists have trouble seeing past strategy and "what works". If a principles-based libertarian says, "public education is unjustified and ought to be abolished," a typical reply of a tactician-activist is "but that is not practical" or "but that is not going to sell with the average person". In other words, the activist makes the mistake of confusing what will sell with what is true. But the committed activist too often relegates something that will not sell now, today, as useless, and in effect as untrue — or, more to the point, he adopts the view that what is true does not really matter; only results matter. Sure, both inquiries — what is the best strategy to achieve liberty? what is liberty? — have their own value and roles. But they are not the same.

In Milsted’s case, his activist-tactical approach leads him to mistake the nature of anarchism and libertarianism. To be an anarchist is not to "plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations." Only the activist would think this way, since he thinks in terms of things we advocate and try to achieve. But anarchists per se are not "in favor of" some "alternative system." That’s not what it means to be an anarcho-capitalist.

Rather, as I have pointed out elsewhere, to be an anarcho-capitalist is simply to recognize (a) aggression is unjustified; and (b) even the minarchist state necessarily commits aggression (and is therefore unjustified). It does not mean one predicts such a situation will occur, or "is workable," etc. It only means that the anarchist libertarian opposes all forms of aggression: both private aggression committed by criminals, and institutionalized aggression the state is able to perpetrate only because a large percentage of the population erroneously regards it as legitimate.

In other words, if one is not an anarchist, this means one either holds that states do not commit aggression, or maintains that aggression is (in some cases) justified. Admirably, Milsted does not try to evade this. He acknowledges that the state commits aggression. It is theft he is trying to justify, after all. He simply thinks aggression in some cases is justified; such a view is also common among socialists and criminals. As I noted above, his reasons in support of justified aggression are confused. On the one hand, his reasoning seems to be based on a desire to avoid being “subjected to ridicule." This is obviously not a justification for violent invasion of others’ bodies or property. Certainly not one that will satisfy libertarians who oppose aggression as a matter of principle. His argument also relies on utilitarian reasoning, and rests on the false assumption that a crime can be justified ahead of time by the criminal paying the proper toll. (See also this post by Manuel Lora, critiquing Milsted’s political gradualism and anti-radicalism.)

I don’t say Milsted’s attempt to justify a small bit of aggression is evil or insincere. In fact it’s common and probably sincere. I think he would like to reduce aggression, but he is willing to break some eggs to make an omelet. However, if libertarianism is at root about the opposition to aggression and the desire for peace, harmony, and cooperation — as I believe it ought to be — the proposed normalization of theft simply isn’t libertarian.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

As H.L.A. Hart argued, the question of what the law is, is different from the question of whether a particular law is moral or just. We can distinguish the way things are from the way things should be. Fact and norm, is and ought, are different things. When we speak of the actual state of affairs, we are talking about actual or legal ownership, and the positive, legal right to control a resource.

What I am getting at is that the state does own many resources, even if (as I and other anarcho-libertarians believe) the state has no natural or moral right to own these things. Nonetheless the state does own some resources — roads, ports, buildings and facilities, military bases, etc. We can allow that a road, for example, is actually, or legally, owned by the state, while also recognizing that the “real” owners are the taxpayers or previous expropriated owners of the land who are entitled to it. This poses no conceptual problem: there is no conflict between the proposition that the taxpayers have a moral or natural right to the land, i.e. they should have the (legal) right to control it; and the assertion that the state has the actual positive or legal right to control the land. The state is the legal owner; but this legal ownership is unjustified, because it amounts to continuing trespass by the state against property “really” owned (normatively or morally) by certain victims of the state (e.g., taxpayers or the resource’s previous owners).

The point here is the state does (legally) own resources which are “really” owned by others. As libertarians, we can view this situation as the state holding property on behalf of the real owners, as a sort of uninvited caretaker.

Now my contention is that given the existence of significant public property in a certain country, it is not necessarily unlibertarian for immigration to be restricted by means of usage-rules established on public property by the state-owner.

Consider this case. I live in a small independent city, which has about 10,000 residents. It is very small and dense, and smack-dab in the middle of Houston, which has 4 million people. Our City has a public pool a few blocks from my house. As a resident of the City (and hence a taxpayer) I am entitled to use the pool for a very small fee — say, $2 per visit. Nonresidents — outsiders — may use the pool too, but they pay three times as much: $6 per visit.

Now let’s say that as a libertarian I would rather the pool be privatized, or sold and the proceeds returned to those who have been victimized to found or maintain it — the taxpayers, or residents, of this City. This would be a type of restitution for the crime committed against them. Alternatively, if the land for the pool had been expropriated, the owner ought to be paid restitution. Etc. The point is that given a government theft, taking, or trespass, it is better, other things being equal, for the victims to receive restitution; and more restitution is better than a smaller, insufficient amount.

But restitution need not be made only in dollars. It can be made by providing other value or benefits to the victims. One such benefit to me is the ability to use a nice, uncrowded, local pool for a cheap price. It is arguably better, even more libertarian, for the City to discriminate against outsiders. If it did not, the pool would be overrun by outsiders seeking cheap swimming. It would be virtually worthless to me and most of my fellow residents of the City if there were no rules on entry, or no discrimination against outsiders. The rule set on the usage of this property by its caretaker-owner, the City, is a reasonable one — one that the owner of a private pool might adopt, and also one that generates more restitution for the victims of the City’s aggression, than a less discriminatory rule would.

This example illustrates the general point that when the state assumes ownership of a resource, then it has to establish some rules as to the resource’s usage. This is what it means to own something: to be able to determine how the thing is used. Coming back to immigration, let’s take the case of the federal government as owner-caretaker of an extensive network of public roads and other facilities. If the feds adopted a rule that only citizens and certain invited outsiders are permitted to use these resources, this would in effect radically restrict immigration. Even if private property owners were not prohibited from inviting whomever they wish onto their own property, the guest would have a hard time getting there, or leaving, without using, say, the public roads. So merely prohibiting non-citizens from using public property would be one means of establishing de facto immigration restrictions. It need not literally prohibit private property owners from having illegal immigrants on their property. It need only prevent them from using the roads or ports — which it owns.

It seems to me establishing rules as to how public roads are to be used is not inherently unlibertarian. Even libertarians who say the state has no right to make any rules at all regarding property it possesses — even speed limits etc. — really advocate the following rule: allow anyone to use it, and/or return it to the people. This is a way of using a piece of property. But most libertarians don’t seem to have a principled opposition to the very idea of rule-setting itself. Sure, the state should not own a sports stadium or road, but so long as it does, it is not inherently unlibertarian for the state-owner to promulgate and enforce some rules regarding usage of the resource. A road may have speed limits; a stadium or museum may charge an entrance fee; the sheriff’s office and the courthouse might have locks on the doors preventing anyone but employees from entering.

Advocates of open-borders/unrestricted immigration are simply those who prefer a certain rule of usage be issued by the feds: that anyone at all may use federal roads, ports, etc. Whereas other citizens have a different preference: they prefer that the feds not allow everyone, but only some people. By having the latter rule, obviously, a version of immigration restriction could be established de facto.

Now I am not so far arguing for the latter rule. I am simply noting that it is not necessarily unlibertarian, as the open-borders types want to maintain. They urge that the illegitimate owner-caretaker of public property use it in this way; others want it used another way. We all agree the rule that really should be adopted is: return the property to private hands. Where we differ is on what second-best rule is more libertarian, or more preferred. Is one second-best rule more clearly libertarian than the other? It seems to me that one useful way to compare alternative rules is to examine the restitution that would be provided by various usage-rules. A rule that generates more restitution for more people is, other things being equal, probably preferable to other rules.

In the case of federal highways, for example, most citizens currently get a benefit from being able to use roads. Is it “worth” the cost of being taxed to maintain the roads, or to pay for compensation fees paid to expropriated or bought-out property owners, or the associated liberty violations? No. But given a rights violation, some restitution is better than none. If the feds announced tomorrow that no rules at all applied to the federal highways, the utility of the roads to most people would fall dramatically, meaning that restitution has decreased. The resource would be wasted. If the feds announced tomorrow that no one could use the roads except the military, then again, this would reduce overall restitution. Some more reasonable rule in between would obviously generate a more respectable amount of restitution than either extreme.

Is there an “optimal” rule that leads to “optimal” restitution? Most certainly not. Private property is the only way to objectively and efficiently allocate capital. But some rules are better than others; and one reasonable rule of thumb used to judge the validity of a given usage rule for a publicly owned resource is to ask whether a private owner of a similar resource might adopt a similar rule; or to compare the amount and types of restitution corresponding to alternative usage-rules. And since it is impossible for the state to adopt a rule that perfectly satisfies all citizens — this is one problem with having public property in the first place — then, other things being equal, a rule that is favored by the overwhelming majority may be viewed as providing “more” overall restitution than one that is favored only by a few people.

Given these considerations, it seems obvious to me that, just as my neighborhood pool discriminates against outsiders, and just as a private pool also does this, so the state owner-caretaker of federal property might also establish rules that discriminate against some immigrants. It is obvious that the overwhelming majority of citizens do not want open borders; which means almost every American taxpayer would prefer that public property not be open to everyone. It is also clear that given federal anti-discrimination laws, providing unlimited access to public roads is tantamount to forced integration, has Hoppe has argued (1, 2). This cost is yet another reason why most Americans would prefer not to have public property open to all with no discrimination or restrictions. Given that values are subjective, using property to cater to the subjective preferences of the vast majority would seem to be one way of achieving a more substantial degree of restitution.

What are my own personal preferences? Well, I would prefer the public property be returned as restitution to the victims and the mafia called the state disbanded. Barring that, so long as they hold property rightfully “owned” by me and others to whom the state owes damages/restitution, I would prefer property they own to be used only for peaceful purposes of the type that would exist in the free market (can any libertarian seriously deny that it’s objectively better for the state to build a library or park on public property than an IRS office or chemical weapons factory?). I would prefer rules to be set regarding the usage of these resources so that they are not wasted, and so as to act in a reasonable manner like private owners would, and to maximize restitution. So far, I think my “preferences” are the only libertarian ones possible.

But what actual rules should we prefer? Here I think we start to veer from libertarianism into the realm of personal preference. I would not want the feds to allow any and all comers onto federal property, for the reasons mentioned above — I believe it would reduce the utility of public property, and impose costs (such as forced integration). In any event, even if this were now my own preference, I have to admit 99% of my fellow taxpayers would simply prefer some immigration restrictions, and therefore probably would prefer some kinds of rules of the road that discriminate against outsiders — given this preference, which does not seem per se unlibertarian — it is obvious that far more restitution is made overall if such rules are enacted.

Libertarians who righteously assume that their open borders view is the only principled one can only maintain this stance if they argue that the state should not ever establish any rules on property it asserts ownership of. Once they grant that some rules should be set, then they can not assume that discriminatory rules are automatically unlibertarian; all rules are “discriminatory.” And I do not personally believe it can be convincingly argued that there should be no rules on public property, because this would result in significant costs to citizens who are victimized enough. It cannot be a libertarian requirement to add injury to injury; libertarianism is about vindicating and defending the victim, not about victimizing him further.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

My own view is that although the Court’s reasoning was flawed, the right result was reached, namely: the Court did not overturn New London’s condemnation action or the decisions of Connecticut State courts that upheld this action. Most libertarian criticisms of Kelo are, I believe, flawed in legal-constitutional analysis as well as in libertarian considerations of federalism and decentralization. Let me briefly summarize my view here before elaborating. The Fifth Amendment‘s provisions on eminent domain limit the federal government only. The argument that it now applies to the States because it was incorporated into the Fourteenth Amendment is flawed. It is not part of "substantive due process" and the argument that it is part of "privileges or immunities" is not persuasive. Therefore, the federal Constitution neither regulates State takings, nor empowers the federal courts nor government to review or overturn State takings practices or laws. For the Court to overturn a State eminent domain law, it would have to assume power not granted to it in the Constitution, which means it would be ignoring the Constitution’s limits and thus, acting like an unlimited government. Which is a bad thing.

Libertarianism and Takings

The one uncontroversial aspect of this case is that takings of private property by governments — whether at the State or federal level — are unjustified. Period. Takings are flat-out theft. States claim to have the power to seize private property under so-called "eminent domain" or condemnation proceedings. However, such power is usually conditioned on or limited by at least two other requirements: (a) that the taking be for public use (and not merely to benefit some private party); and (b) that the taking be compensated by paying the "fair market value" for the property to the owner. If the taking is uncompensated, or not for public use, it is viewed as illegal.

What is the libertarian view on takings? In my opinion, anarcholibertarians and minarchists alike should all oppose the state’s power to condemn private property, by recognizing that it is theft and therefore unjustified. But given that states do claim the power to expropriate, we also should favor rules that minimize the harm or make its occurrence less likely. Requiring states to pay helps minimize the damage to some victims (indeed, some are probably secretly glad they were robbed, because their payment is more than they might have actually received in a private sale — determination of fair market value is not a rigorous science, after all). And if states have to pay for property, it reduces the occurrence of condemnations — the state might as well just use tax dollars to purchase land, in many cases, rather than stealing and then paying for it.

And the requirement that the taking be for a public use also reduces the total number of takings, since not every condemnation can be characterized as a taking "for a public use" with a straight face. But of course the opposite requirement — that only takings for private use are permitted, but not takings for public use — would also reduce the number of takings.

For the libertarian, the main concern is to reduce the number or likelihood of such acts of theft; and to minimize the harm done when it does occur. But once a person’s land is taken, it is hard to see how he suffers extra harm due to the way the state uses the property — whether they use it to build a road, or military base, or sell it to Costco. In fact, some libertarians might prefer that their land be transferred to private hands for peaceful purposes such as a mall or strip center or condo instead of being used by the inefficient state.

Our Federalist System — the Presumption of Unconstitutionality

But that is not the main point. The main question for the libertarian here is what is the role of the federal government with regard to State eminent domain laws. First let’s take a look at how our federal system was supposed to work. The States pre-dated the union and are regarded, like other states in the world, as sovereign (in international law, "states" means a country; the US is a state). They are said to have "plenary police power," which does not mean they are unlimited but means they have general legislative and executive power.

American States, it happens, have written constitutions that place various limits on the exercise of power by the State government or its subsidiaries (like cities). In fact, Connecticut’s Constitution says, in Sec. 11: "The property of no person shall be taken for public use, without just compensation therefor." For whatever reason, the Connecticut Supreme Court, according to the Kelo case, held that the transfer of the expropriated property for purposes of the economic development plan "qualified as a valid public use under both the Federal and State Constitutions."

Unlike American States and other states around the world, however, the federal government does not have general legislative or plenary police power (though it has done a good job inventing this power by stretching the "interstate commerce" clause). Rather, it is limited by having only the powers enumerated in the Constitution — the powers delegated to it. This scheme is made clear by the very existence of the Bill of Rights, the Ninth Amendment, and especially the Tenth Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This purpose of this provision is to make it clear above all that the new federal government — the dangerous central state — has only the powers granted ("delegated") to it, and no others. The others may be reserved by the people, or by the States, whatever — regardless of who has these powers, the people or the States, these powers are not delegated to the feds. (Note: the Bill of Rights includes the first ten Amendments to the Constitution. The Constitution was ratified in 1789; the Bill of Rights two years later, in 1791. The first eight amendments contain various rights; the ninth has the provision saying the listing of rights in the first eight should not be construed to deny or disparage others retained by the people, and the tenth has the federalism provisions noted above.)

What this means is that there ought to be a presumption that any action or law the federal government takes is unconstitutional unless the power to take the action or enact the law is found in the Constitution. This idea is behind the push for requiring Congress to specifically enumerate its authority to enact a given statute in the preamble to the statute itself (see H.R. 2458, the Enumerated Powers Act, introduced into the House in the 109th Congress). And as Professor Randy Barnett notes, the federal government claims

to have the rightful or justified power to force those within its jurisdiction … to obey its laws. … What (if anything) exactly gives [the federal government] this justified power? Normativity has now entered the picture, not because I have introduced it, but because those who claim the Constitution as their "authority" for their actions also claim the justified power to coerce others to accept their commands. It is then perfectly appropriate to ask whether this normative claim is warranted or not.

In other words, requiring the federal government to show a given law or action is constitutional does not mean that one is accepting the legitimacy of the government or the law. It is simply holding the federal state to standards it claims to be bound by.

Federal Review of State Action: an Exercise of Power

Now what is crucial for our purposes is to recognize that for the U.S. Supreme Court to overturn a given State law, this is an exercise of power. This means that the power to review and nullify State legislation must be enumerated in the Constitution. If this power is not found in the Constitution, then the Supreme Court simply has no jurisdiction and no authority to even question the State law. It would be akin to the New London landowners appealing the Connecticut law to, say, Canada’s high court or the American Arbitration Association or the local Rotary Club. These entities would dismiss the complaint outright (or ignore it), since they have no jurisdiction or authority over the City of New London. It is clear that when a court refuses to hear a case because it recognizes it has no jurisdiction, then it is not "allowing" the challenged action to happen, any more than we libertarians "let" "poor people starve" by refusing to endorse a welfare system; any more than the Rotary Club is "letting" Memphis enforce blue laws.

If the federal government does not at least make an effort to abide by the limits place on it in the very document that authorizes its existence, then it has become unlimited. And this is something libertarians clearly ought to oppose. When the U.S. Supreme Court is asked to review the law of a jurisdiction over which it has no authority or power — be it the city of New London or the Vatican — then it has a choice: to review the law and pronounce it good or bad, which very review requires it to assume power that it was never granted; or to abide by constitutional oaths and obligations and refuse to assume power it was not given. If it makes the latter choice, then in some cases it may fail to nullify unlibertarian laws of other states. This is something similar to the idea that the U.S. should not invade every less-libertarian country in the world, even though this means some less-libertarian countries exist and do bad things. But if the Court makes the former choice, and assumes the power to review the State’s law, then it is acting on the principle that it is in fact not limited by the Constitution. Which means it is unlimited, or at least a lot less limited than the Constitution would require.

The Bill of Rights as Limits on the Federal Government

So the question then becomes: does the Constitution in fact empower the Court to review State eminent domain laws? What the dissent would have done is strike down the Connecticut city’s law for violation of the Fifth Amendment, which prohibits takings unless they are for public use and compensated. But are they right? Does the Fifth Amendment empower the federal government to review and nullify State eminent domain laws? It is clear that at least until the Fourteenth Amendment was "ratified" in 1868 (scare quotes because it was ratified unconstitutionally and illegally, and therefore not really ratified; but it has unfortunately become a de facto part of the constitutional landscape, so I leave this point aside), the Fifth Amendment — like the other rights listed in the first eight amendments, applied only to the federal government. A bit of context helps illustrate why.

American States, like other states in the world, have general police power — the power to legislate in general. In theory this gives them the power to violate rights. Therefore it is important to specify limits on the exercise of this power, i.e., rights that "trump" the power the states have. Now during the constitutional debates, the Antifederalists insisted a bill of rights be added to the Constitution to ensure the new central state would not trample rights (see pp. 761—64 of this article for more background on this). The Federalists resisted, claiming it was not needed since the federal government was one of enumerated powers, and simply would not be able to violate rights since it did not have the power to do so. Worse, they worried that listing rights would imply the federal government did have power to legislate in that area (else, why specify a right?), or possibly even general legislative power. For example, if a provision says Congress may not censor speech, it could be argued Congress must have general power to legislate, at least in this area, otherwise the listing of this limitation on Congress’ power would be pointless. But the Antifederalists insisted, and the Federalists’ solution was the Ninth Amendment, which says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This allowed them to list some rights — like the right to freedom of speech, etc. — without worrying this would imply a general federal legislative power that would imperil other rights not listed. The Tenth Amendment, as noted above, added an exclamation point to this by making it clear that the federal government is one of enumerated powers.

In any event, what is clear is that the first eight amendments of the bill of rights specify limits on what Congress can do, while the ninth makes it clear that this listing is not exhaustive (for example, so that the listing of rights can’t be used to infer general federal powers were granted, that could be used to infringe these other, unenumerated rights), and the tenth emphasizes again that the feds have only the powers delegated to them, and no others. Now Amendments 1 through 8 limit the federal government either by saying "Congress shall not…" do something (like make a law abridging freedom of the press) or by listing a "right" that the people have (which would trump any exercise of federal power and thus also serve as a limit).

It is nonsense to read the Bill of Rights as anything other than further limitations on federal power, and a reiteration and emphasis of the federal structural scheme of enumerated powers (for more discussion of this latter topic, see this article by Thomas McAffee). The point is that the listing of rights in the Bill of Rights, ratified in 1791, do not serve as any delegation of power to the federal government, but only as an emphasis that it has only the powers delegated to it in the 1789 Constitution.

I belabor this point because it seems to confuse many well-intentioned libertarians, who see that the Constitution lists a right, and scratch their heads at the idea that this does not mean the federal government can swoop into Texas and enforce this right. As they see it, it is simple: individuals have, say, a right to free speech (true); it is listed in the Bill of Rights (true); so "of course" the Supreme Court should be able to strike down state laws that censor speech. But this does not follow at all. The recognition of a right in the document that grants powers to — indeed, creates — the federal government serves only to make it clear that this government may not violate that right; that it either does not have this power in the first place, or, even if it does, it is trumped by the right. It does not serve as a grant of power to the feds; just the opposite. But for the feds to be able to review and overturn state laws, this would mean they have the power and authority and constitutional right to enforce these judgments. It would mean they have a power. But recognizing a right does not grant a power.

This was, I believe, fairly universally recognized for a long time after the founding. Until the Supreme Court began to construe the Fourteenth Amendment years after its "ratification" to incorporate selected rights in the Bill of Rights, it would not have been a violation of the federal Constitution for a state to establish a religion or censor speech, for example. This confuses many libertarians who are so used to the federal dominance of the states and the routine practice of federal court review of state laws. But this is an innovation by the Supreme Court early in the Twentieth Century — about fifty years after the Fourteenth Amendment was "ratified." Until that time, the rights and limits specified in the Bill of Rights were limits on the federal government only. States were limited by their own constitutions. The federal government simply had not been delegated the power to review state laws for compliance with fundamental rights and liberties. Consider, for example, that there were established state religions (Congregationalism in Mass., e.g.) in effect in 1791, when the Bill of Rights was ratified. As constitutional scholar Akhil Reed Amar notes in Some Notes on the Establishment Clause (notes omitted):

The Establishment Clause did more than prohibit Congress from establishing a national church. Its mandate that Congress shall make no law "u2018respecting’ an establishment of religion" also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments. In 1789, at least six states had government-supported churches. Congregationalism held sway in New Hampshire, Massachusetts and Connecticut under local-rule establishment schemes, while Maryland, South Carolina and Georgia each featured a more general form of establishment in their respective state constitutions. And, even in the arguably u2018non-establishment’ states, church and state were hardly separate; for example, at least four of these states, in their constitutions no less, barred non-Christians or non-Protestants from holding government office. According to one tally, eleven of the thirteen states had religious qualifications for officeholding. Interestingly, the federal Establishment Clause, as finally worded, most closely tracked the proposal from the ratifying convention of one of the staunchest establishment states, New Hampshire: u2018Congress shall make no laws touching religion’ — a proposal that of course would immunize New Hampshire from any attempted federal disestablishment.

Now the point here is not that these state laws were good or libertarian, but only to illustrate that it is quite clear that the Fifth Amendment, standing alone, even though it specifies compensation and public use requirements for eminent domain, does not limit the states because it does not provide any power to the federal government to require compliance. The Fifth Amendment was merely redundant with the enumerated-powers structure of the Constitution: the Constitution nowhere specifies Congress has the power to take property for a non-public use or without compensation; therefore, Congress has no authority to do this even without the Fifth Amendment saying they do not.

The Fourteenth Amendment and the Incorporation Doctrine

But the Fourteenth Amendment, it is now held, "incorporates" most of the rights in the Bill of Rights, and applies them to the States, including the eminent domain provisions of the Fifth Amendment. The Fifth Amendment was held to apply to the states by "incorporating" it into the Fourteenth Amendment in 1897. As I’ve argued elsewhere, the incorporation doctrine of the Fourteenth Amendment is flawed (Federalism and Libertarians on Eminent Domain; On Takings and Public Use; Supreme Confusion, Or, A Libertarian Defense of Affirmative Action, Barnett and the 14th Amendment; Happy Bill of Rights Day — The Problem with the Fourteenth Amendment; Federalism, In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism; Sandefur and Federal Supremacy; Supreme Confusion, Or, A Libertarian Defense of Affirmative Action; Healy on States’ Rights and Libertarian Centralists, Thomas on Marijuana; Libertarian Centralists). The notion that it is part of the "due process" clause of the Fourteenth Amendment is ridiculous. Due process has to do with process, not substantive rights. The whole doctrine of "substantive due process" is ridiculous. Even legal scholar Roger Pilon, who holds that the Fourteenth Amendment does apply fundamental rights to the states, agrees that the Due Process and Equal Protection Clauses of the Fourteenth Amendment were not intended to provide federal protection for citizens’ fundamental rights.

So if the Fifth Amendment is not applied to the states by the Fourteenth Amendments Due Process clause, by what means is it applied? Some libertarians, such as Roger Pilon, would say that the Privileges or Immunities Clause is a broad category that includes fundamental rights such as those in the Bill of Rights. That provision states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is argued by some that the rights listed in the Bill of Rights are part of the "privileges or immunities of citizens of the United States." In my view, this is untenable and in any event has never been firmly established.

The Fourteenth Amendment cannot be exhaustively analyzed here. Let me just note a few things. First, if the Fourteenth Amendment "incorporates" the rights specified implicitly or explicitly in the Bill of Rights, then it incorporates not only the eminent domain provisions of the Fifth Amendment but also the "due process" provisions of the Fifth Amendment. The Fifth Amendment states: "nor shall [any person] be deprived of life, liberty, or property, without due process of law." If this is one of the "privileges or immunities" specified in the Fourteenth Amendment, then the privileges or immunities clause inherently already contains due process rights. It is thus a mystery why the Fourteenth Amendment provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Why would it list due process rights in addition to the privileges or immunities clause, if the latter incorporated the Fifth Amendment’s almost identical due process clause?

Clearly, in my view, the framers and ratifiers of the Fourteenth Amendment did not regard the privileges or immunities clause as incorporating the Bill of Rights; they would not have needed to include a separate due process clause if they did. So it seems to me that the theory of incorporation — not even invented until about 50 years after the Fourteenth Amendment was illegally ratified — is especially absurd in the case of the Fifth Amendment.

Second, it is useful to consider what the reaction would have been of most of the framers and ratifiers of the Fourteenth Amendment if they had been asked if it would permit the federal courts to review state laws for compliance with most of the provisions of the Bill of Rights. It seems to me clear that they would overwhelmingly deny it; and that they would not have ratified the amendment if it had clearly specified this. If the Fourteenth Amendment does incorporate the Bill of Rights, for example, it apparently implies that federal courts can strike down state laws such as those prohibiting homosexual sodomy. Does anyone seriously think the framers or anyone at the time thought the Fourteenth Amendment meant that?

Third, the word "rights" does not appear in the murky expression "privileges or immunities." Much less is the Bill of Rights mentioned. Given this, it is certainly not perfectly clear that the Privileges or Immunities clause meant to incorporate fundamental rights and apply them against the states. It is at the very least arguable that much less was intended; the work of Raoul Berger — much derided by incorporationists from Akhil Reed Amar to Michael Kent Curtis to Roger Pilon and Randy Barnett — shows as much (see, e.g., Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment, as well as other works by him, including his debates with Michael Kent Curtis). But in a constitutional system in which the central government was feared and states’ rights were jealously guarded, one would expect any radical change in this system — and the Fourteenth Amendment as interpreted by Barnett, Curtis, et al. surely imposes radical changes on federalism — to be made explicitly, clearly, expressly, in writing. After all, we require contracts to sell land and real property to be in writing. Surely a sweeping grant of power to the feds and a seismic shift in our federalist system ought to be recognized only if it is explicitly and clearly stated in an Amendment.

Read the Fourteenth Amendment for yourself. It seems to be to be almost self-evident that the words "privileges or immunities" do not clearly claim all the rights in the Bill of Rights. To my mind, the most likely meaning of those words — as understood by most of the ratifiers in 1866 — was a narrow set of rights having to do with national citizenship only (it was a term tracing its ancestry to a previous bill), but not the full panoply of natural rights or those listed in the first eight amendments of the Bill of Rights.

In any event, it is clearly arguable that the privileges or immunities clause had a narrow meaning, just as it is arguable that it had a broader meaning. Given that its meaning is not clear, why would it serve as an effective and legitimate substantial grant of power to the feds and a fundamental change to the federalist system constitutionally established in 1789? If the Constitution said, "Congress shall have power to stop truly offensive actions," would libertarians argue that this unclear, vague wording justifies a massive legislative power grab by Congress, or would they say that this wording is not sufficiently precise to give Congress wide powers?

Some libertarians would say, shouldn’t we favor a reading that expands rights? There are two responses to this. First, we should favor an honest reading. Where the Constitution is unlibertarian, we ought not to hesitate to say so, nor to dishonestly pretend it is really libertarian where it is not. Second, one must realize that given the federal scheme of enumerated and limited powers, expanding the category of rights that apply to the states simply means an expansion of the scope of the power granted to the federal government. In other words, saying the Court has the authority to stop bad state laws means the Court has the power. It means power has been shifted upwards, in a centralizing direction.

What all this means is the Constitution has not clearly granted to the feds the right to review state laws for compliance with the Fifth Amendment. Federal court review of state eminent domain laws thus requires the Court to seize jurisdiction and power not granted to it, i.e., to disregard the limits it claims to be bound by, in its foundational document. There is a term for governments that do not abide by the constitutional limits placed on them: unlimited government. Is this something libertarians should favor? I think not.

Kelo: the Decision and the Reasoning

Back to Kelo — the right decision (from both a constitutional and federalist perspective) would have been to reject the complaint for lack of jurisdiction, just as the Court would have done if it had received a petition to review a decision of a trial court in Zimbabwe. This would have not so much as upheld the Connecticut condemnation proceeding as refused to seize the jurisdiction needed to overturn it.

The Court here did end up upholding the law, so that the right decision was made, but for the wrong reasons. All nine members of the Court agree that the Fifth Amendment does apply to the States. So all nine proceeded to apply the standards of the Fifth Amendment to the New London eminent domain proceeding. Five found it complied with the requirement that takings be for a "public use," and four did not.

I find it interesting that those libertarians yelping loudest about this decision have to make the same mistake made by all nine Justices — that the Court has jurisdiction to hear this matter in the first place. Consider the position of these libertarians. They want the Court to be able to review state legislation, and to overturn it if the Court believes it is incompatible with the Bill of Rights. They want the Court to engage in this practice. Apparently they are ignorant — willfully or innocently — of the way the Constitution works or they just don’t care. And yet, here they are, now, bitching about the result in this case. They are upset, in part, that the Supremes have now expanded the category of "public use," and thus takings around the country will accelerate (one libertarian pointed me an article about a town near Houston that will now be able to condemn two seafood companies to build a private boat marina).

Sure, one bad result of the way the Court made its decision — by assuming it has jurisdiction and then proceeding to definitively construe what "public use" means — is that now some states may tend to interpret their own constitutional public use provisions similarly, since many of them are modeled after the federal Bill of Rights.

And yet the only reason that a "bad" decision from the Supremes can instantly propagate and become the standard followed nationwide is that the Supremes have arrogated to themselves this position. Those libertarians who whine about the Supreme Court’s rationale and reasoning are generally in favor of the system that permitted the Supreme Court to be in the position of making this bad decision and foisting it on the country. Some chutzpah.

It is quite inconsistent and confused for libertarians to kvetch and gnash teeth over the fact that the Kelo decision “lets” states have the power of eminent domain, and yet not mind the Supreme Court having all kinds of powers it was never constitutionally meant to have, including the power to review state eminent domain laws in the first place. They claim they don’t want states to have certain powers, but they don’t mind the feds having powers — especially the power to take away the States’ powers. And then they whine that this same Court has used its discretion and illegal power to “permit” a State to have a power they shouldn’t. It’s utterly confused. It’s like favoring socialized medicine but then complaining about the inefficiency of the resulting system.

If the Supreme Court acted with integrity and honesty, it would have rejected the case outright, without even bothering to declare what "public use" hereafter means for purposes of eminent domain statutes. It would have been a non-event. The battle over eminent domain and the standards regulating it would have been fought at the local level, instead of at the federal level. But the critics of the decision want to attack the symptom, not the disease. They symptom is the bad decisions made by the Court that are then applied to the country as a whole. The disease is giving the Court the power to make so many decisions that bind the country as a whole in the first place.

Public Use and Private Use

Although I believe Justice Thomas and his fellow conservatives Justices are usually better at constitutional interpretation, I am not so sure in this case (setting aside that all nine Justices mistakenly assume the Fifth Amendment does apply to the States). As a libertarian, I am in favor of as many limitations on the power of eminent domain as possible. International law requires that a taking be compensated, for a public purpose, and non-discriminatory (background for this can be found in chapter 3 of my 1997 book Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk, pp. 58—59 and 77—85; see also the section "The Requirements of Nondiscrimination and Public Purpose: Concepts of Limited Significance," at pages 85—87; to be expanded in International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, due out later this year). So I am all for any limitations on the power of states to steal property. A rule saying eminent domain can only be done in months with less than average precipitation would be fine with me. "Non-discrimination" would also be fine. Anything to slow the critters down.

But that does not mean all these restrictions are intellectually coherent. What is just compensation? For the Austrian and libertarian, just compensation is what the owner would sell the property voluntarily for. It is not the same as "fair market value." Cash paid to the expropriated owner does not make him whole, if he did not want to sell. But it is better than nothing, and at least reduces the harm done to him.

For similar reasons, a requirement that takings to be for a "public use" is also useful, since it reduces the overall number of takings, even if "public use" is not really that objective or rigorous a concept.

Nonetheless, I find the doom and gloom comments of libertarians in response to the Kelo decision to be a bit overwrought. First, the Court did not abolish the public use requirement. What they said — somewhat reasonably, given the operating assumptions — was that if property is taken to serve a public purpose then that can satisfy the "public use" requirement. The Court also held that “The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.”

I have to admit I am not quite sure what exactly a "public use" or "public purpose" is. The concepts seem to rest on economically flawed concepts — see on this Hans-Hermann Hoppe’s Fallacies of the Public Goods Theory and the Production of Security. As Hoppe points out, there is no objective way to distinguish “public” goods. If the state says it can expropriate things for a public purpose only, that falsely implies the state is limited — it implies that the standard of “publicness” is objective. But in fact it is not; it is just whatever the state decrees. Therefore under the guise of limiting itself, it really gives itself more power.

But given that some states have larger public sectors, some activities are regarded as public or private depending on the decrees of the state. In Canada, health care is socialized and thus public. If a Canadian province wants to condemn land to make a (state) hospital, presumably this is for a public use. In the US, health care is not yet completely socialized. This is presumably a good thing. So libertarians would presumably yelp if land were taken to sell to a private hospital. But what is the difference? Both the public and private hospital serve similar functions. Should we set in place an incentive for the state to enlarge the public sector, or not to privatize a given sector, because it can use eminent domain only for the "official" public sector?

Moreover, the cries of indignation by libertarians about the idea of a taking for a private purpose is a bit perplexing. First, once you are robbed, the damage is done (even if ameliorated to some extent by the payment of compensation). How are you harmed more if your stolen property is transferred from the state to a private company instead of to some state agency? And notice the Court said the issue at hand was whether the city of New London’s proposed disposition of the petitioners’ property qualifies as a "public use" within the meaning of the Takings Clause. In other words, the Court was concerned with what the state did with the property after it was taken. Why does transferring it to a private party cause any extra harm or offense to the expropriation victim? Why is the purpose or motivation of the taking of such great concern to libertarians? The problem is the taking itself. After all, we object to hate-crime laws, on the grounds that the criminal act that is committed is no worse just because of racist motives of the criminal; an act of murder or battery does just as much damage to a victim regardless of the perpetrator’s motivations.

Also — the rule that state takings should be for a public purpose and not for a private purpose seems to rest on the idea that if property is condemned and transferred to a private party, this might just be some kind of political favor being done for the recipient. However, notice that Kelo’s ruling stated, "the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party." I.e., Kelo’s ruling was not open-ended; it only said that takings of property to be later transferred to a private party as part of "a u2018carefully considered’ development plan" can serve a public purpose and thus be for a public use. But the ruling would not permit takings of "land for the purpose of conferring a private benefit on a particular private party" or a taking of "property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit."

My point here is that the alleged purpose of the public use requirement is to prevent taking of property to benefit private parties. However, as any libertarian knows, this is just what government is about — seizing private property for its private pals — taxing you for Lockheed, for example. Even takings of property for public use invariably benefit certain people, often the cronies of state officials. The Court in Kelo even acknowledges this:

Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we recognized that the “most direct beneficiaries” of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide market. [...] The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” [...] referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment. Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.”

So normal government operations — taxing and spending, takings for a public use — typically benefit private parties. Why the special moral outrage reserved for takings for a partially private use? I am not in favor of it, but I fail to see why it is any worse than the other crimes government commits. At least with this one they pay restitution.

And not only this: shouldn’t we as libertarians assume that a taking for a private use would be better than a taking for a public use? After all, one might prefer his land to be given to peaceful, productive capitalists than to bureaucrats, warmongers, and thieves. If the state takes my house and pays me for it, I would rather it be turned into a condo than a munitions factory or prison warehousing pot smokers.

Consider roads. Cities or other state entities can take property to make a public road. But sometimes private toll roads are also authorized. Why would the state be able to seize property for the former but not the latter? Note: I am not in favor of state theft for any purpose. My point is it makes no sense for libertarians to be more offended at takings that are for a private purpose than for those that are for a public purpose. If anything, they ought to prefer the former to the latter.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

This book will proudly grace your coffee table or make excellent bedtime reading (full disclosure: Edmonds and I are buds). Edmonds — whose work will be well known to LewRockwell.com readers — draws on his experience as a libertarian writer, scholar-musician (he has a doctorate in music), and cooking expertise to combine a mouthwatering yet intellectually stimulating gumbo of interwoven advice, recipes, related economic-political analysis, and fascinating vignettes.

This is in an age in which we are constantly harangued about our food habits and barraged with conflicting fad diets and nutritional advice. Body not perfect? Eat carbs? Processed food? Fat? Frozen food? Not enough kale? Like cheese in a can? Fried spam? The occasional taco? A nice bourbon … and chocolate? Be prepared to feel guilty; this is the age of guilt.

One of the nice things about Soup is that as you read it, you cannot help but regain your love of food, and at least temporarily quell some of your guilt. Moreover, Edmonds helps to explain how, as usual, government meddling makes food worse. This might sound trivial at first blush, but of course food is one of the most essential things in human life. As our author explains,

Everybody loves food. Everybody knows everybody loves food. What isn’t well known is how much more we might love it — how much safer, less expensive, and more varied it could be — in the absence of meddlesome government interventions. My purpose in writing this book is to show how government meddling works; how it hampers our enjoyment and liberties; and how we might lessen government’s intrusions into our kitchens and lives. [ix]

What if you eat too much? Observes our author,

Frankly, some people don’t mind being obese, at least not too much. Given the complete inevitability of losing weight whenever you expend more calories than you take in (it’s a law of physics, after all), those who are overweight are making choices on a daily basis. Occasionally fighting a spare tire myself, I understand the unpleasantness of those daily choices. It is natural that physical effort is aversive while eating and relaxing are enjoyable; otherwise, we could expect lions and tigers to chase after the strongest, fastest zebras in the herd, which of course they don’t do. [20]

Edmonds writes about food (and liberty) with verve, assuredness, and relish; he is totally, completely, unapologetically in favor of food (and liberty). A combination of P.J. O’Rourke, Henry Hazlitt, and Cliff Clavin-the-minutiae-expert from Cheers, he serves up recipes, advice, and fascinating food trivia. In fact, if there were a Jeopardy on food, Edmonds would surely win it.

Yes, there’s a dash of sound economic-political commentary sprinkled into the mix — just the right amount. Edmonds explains,

In this book, I use as examples everything from specific food ingredients to recipes to national cuisines to show how government intervention is always problematic, resulting in reduced variety, higher prices, and even reduced safety for consumers; and how economic freedom benefits all participants in a market — every producer and every consumer. [4] There’s no better way to illustrate the power of the market — the power of all of us, thinking for ourselves, seeking solutions, and exploiting opportunities — than to look at the food itself. [26] [T]he lessons to be learned from food are limitless. Almost any food you can name, if you study its history, has something to say about economics, politics, history, or culture. [29]

In illustrative vignettes, he shows how government intervention lowers food quality, diversity, and availability, and raises prices (or do I repeat myself). For example:

Without government inspections and government criteria, we wouldn’t have so many large producers (apparently) striving to meet only the government’s mandated minimum levels of purity, with occasional tragic results. I would like the option of choosing between beef producers who have their own standards of cleanliness. There is no doubt that some would be supremely reliable. Then, I wouldn’t have to eat dry, overcooked hamburgers every time. I’d pull out the classical beef tartar recipes. [12]

And consider this brief but humorously frank and to-the-point illustration of how supposedly "healthy," organic food can be inferior to regular food:

There are apple growers I’d call stupid, by the way — hippies who grow organically. Some of the commercial farmers are growing organically, and they’re having to apply "natural" pesticides and fertilizers constantly to approach the productivity of "inorganic" (?) farms. Some of the hippies are using cow manure. They pick the food off the ground. Thus, mainly "organic" apples are likely to be contaminated with E. coli bacteria, and once contaminated, some produce is impossible to sanitize. The apples being sprayed by chemicals known to be safe for wildlife and people, chemicals costing up to $700 per gallon, have never poisoned any customers. But they’re the apples the environmentalists want to ban in favor of organic apples that are more likely to be contaminated by cow poop laden with bacteria that can kill children. [9]

Edmonds’ political advice is also sound:

Moving to free markets in food (and health care, and energy, and so on) might shock a few producers at first. Some farmers would have to find other work, or work their farms as contractors for larger agribusinesses. Such is the march of progress, and it can be only good news that fewer and fewer people would have to labor to provide the market with basic necessities. The benefits for all of us, both immediate and long term, would be lower prices and more abundant supplies of everything edible. [14]

But Edmonds’s love for food shines through. As a native-born Louisianan, for example, I appreciated this passage:

Louisianans love "mud bugs," a.k.a. crawdads or crawfish; and they are indeed bugs, just as lobsters are kissing cousins of cockroaches. The people in Louisiana will boil crawfish in a giant pot with crabs, potatoes, leeks, onions, jalapenos, and whatever else is in the kitchen that might work (indeed, legend has it that "jambalaya" loosely translated means "what’s in the fridge?"), along with about a cup of ground spices and dried herbs. I’ve seen a vintage cooking show where the cook was struggling to get the lid on the pot against all the crawdads and crabs struggling to get out. This is proper — you want to know the seafood is fresh. Only in Louisiana is boiling a form of performance art. [93]

I also loved Edmonds’ celebration of economic/culinary progress (also displaying his Cliff Clavin-ness):

The round-headed cabbages we know are not a natural occurrence. Wild cabbage, which still grows along the shores of the Mediterranean, looks somewhat like celery, with big stalks and relatively few leaves. Endive or romaine lettuce, available at your local grocery, looks much like wild cabbage. The round-headed stuff wouldn’t have evolved on its own, I’m sure. It’s a ball of leaves, tightly wound on top of each other, the vast majority not contributing to the plant’s nutrition through photosynthesis. Round-headed cabbage isn’t even an evolutionary dead end; it’s more of an evolutionary "what?" No, we humans selectively bred the wild stuff until we developed the round-headed stuff. We did so because we wanted to. This unnatural selection began more than 2,000 years ago.

A robust, free-thinking man would say that’s exactly what vegetables are for. They’re here for us, not for themselves. People rule, and that includes ruling cabbage, if it suits us. Cabbage is highly nutritious when eaten raw, and various national and regional cuisines have made culinary art from it, from Prussian sauerkraut to the ubiquitous American coleslaw (yes, I know, the Dutch may be at the bottom of that, "kool sla" and whatnot, but they don’t make or eat it like we do, even though they put mayonnaise on french fries). Cabbage is a tribute to the victory of genetic engineering over vegetable nature, even if the engineering was done the slow, old-fashioned way, one cabbage generation at a time. [27—28]

What a great passage! Interesting and pro-liberty. In its exaltation of human achievement in manipulating nature to satisfy human wants and needs, it’s almost Randian, except that it has a sense of humor. To-wit (and more Cliff-ness):

Both the best and the worst of men’s tendencies are illustrated by poopoo coffee, as I call it, or Kopi Luwak (civet coffee), as it’s called in Indonesia. The civet is a mammal, apparently a variety of cat that resembles a cross between an opossum and a rhesus monkey. Where there are both civets and coffee, civets eat big red coffee berries. Civets can’t digest the beans, so the beans can be found on the ground after the civets have passed them through their digestive tracts.

According to reports, the beans are unaffected by the adventure, and are prized for the special flavor and aroma they impart when roasted, ground, and brewed. Such beans are probably the rarest of coffee varieties, and sell over the Internet for $300 per pound. It might as well be noted that if passing through the bowels of a cat didn’t affect the flavor of the final product, these particular beans would be no more prized than other Indonesian coffees. [35]

As Edmonds concludes, "This represents the worst of humanity, in my opinion, with regard to gullibility: People are paying $300/lb for, and consuming, things picked from animal crap."

Edmonds is no food snob. Although obviously an expert chef in his own right, here’s what he has to say about French food — sentiments that will no doubt resonate in many of us who have been bewildered at what’s supposed to be so great about French restaurants:

Many Americans labor under the misnotion that French food is the finest cuisine, but that is the result of successful marketing (if effete snobbery qualifies as marketing). The French love to talk about, look at, and sell food. The Italians love to cook and eat it. For my money, anyone who will age pork and cheese for two years, and vinegar for twenty, is a food lover who merits emulation. [45]

And did I mention chocolate and bourbon earlier? I got that advice from this suggestion: "After eating a good meal — meat, cheese, salt — there’s little I enjoy more than a slice of cheesecake or hunk of chocolate along with a shot of bourbon or single malt" [56]. I’m partial to dark chocolate so tried that; and he’s right, it’s great with bourbon!

I’ll conclude with this quote:

The lesson? People make life better. Freer people make life better faster. And as the Italians keep demonstrating, advancing technology isn’t the answer, it’s the result. People — entrepreneurs, inventors, experimenters, and especially customers — are at the bottom of it all. Leave them alone to do their work, and watch your quality of life improve. [38]

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

Libertarian opponents of anarchy are attacking a straw man. Their arguments are usually utilitarian in nature and amount to "but anarchy won’t work" or "we need the (things provided by the) state." But these attacks are confused at best, if not disingenuous. To be an anarchist does not mean you think anarchy will "work" (whatever that means); nor that you predict it will or "can" be achieved. It is possible to be a pessimistic anarchist, after all. To be an anarchist only means that you believe that aggression is not justified, and that states necessarily employ aggression. And, therefore, that states, and the aggression they necessarily employ, are unjustified. It’s quite simple, really. It’s an ethical view, so no surprise it confuses utilitarians.

Accordingly, anyone who is not an anarchist must maintain either: (a) aggression is justified; or (b) states (in particular, minimal states) do not necessarily employ aggression.

Proposition (b) is plainly false. States always tax their citizens, which is a form of aggression. They always outlaw competing defense agencies, which also amounts to aggression. (Not to mention the countless victimless crime laws that they inevitably, and without a single exception in history, enforce on the populace. Why minarchists think minarchy is even possible boggles the mind.)

As for (a), well, socialists and criminals also feel aggression is justified. This does not make it so. Criminals, socialists, and anti-anarchists have yet to show how aggression — the initiation of force against innocent victims — is justified. No surprise; it is not possible to show this. But criminals don’t feel compelled to justify aggression; why should advocates of the state feel compelled to do so?

Conservative and minarchist-libertarian criticism of anarchy on the grounds that it won’t "work" or is not "practical" is just confused. Anarchists don’t (necessarily) predict anarchy will be achieved — I for one don’t think it will. But that does not mean states are justified.

Consider an analogy. Conservatives and libertarians all agree that private crime (murder, robbery, rape) is unjustified, and "should" not occur. Yet no matter how good most men become, there will always be at least some small element who will resort to crime. Crime will always be with us. Yet we still condemn crime and work to reduce it.

Is it logically possible that there could be no crime? Sure. Everyone could voluntarily choose to respect others’ rights. Then there would be no crime. It’s easy to imagine. But given our experience with human nature and interaction, it is safe to say that there will always be crime. Nevertheless, we still proclaim crime to be evil and unjustified, in the face of the inevitability of its recurrence. So to my claim that crime is immoral, it would just be stupid and/or insincere to reply, "but that’s an impractical view" or "but that won’t work," "since there will always be crime." The fact that there will always be crime — that not everyone will voluntarily respect others’ rights — does not mean that it’s "impractical" to oppose it; nor does it mean that crime is justified. It does not mean there is some "flaw" in the proposition that crime is wrong.

Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, "anarchy won’t work" or is "impractical" or "unlikely to ever occur."1 The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.2

Other utilitarian replies like "but we need a state" do not contradict the claim that states employ aggression and that aggression is unjustified. It simply means that the state-advocate does not mind the initiation of force against innocent victims — i.e., he shares the criminal/socialist mentality. The private criminal thinks his own need is all that matters; he is willing to commit violence to satisfy his needs; to hell with what is right and wrong. The advocate of the state thinks that his opinion that "we" "need" things justifies committing or condoning violence against innocent individuals. It is as plain as that. Whatever this argument is, it is not libertarian. It is not opposed to aggression. It is in favor of something else — making sure certain public "needs" are met, despite the cost — but not peace and cooperation. The criminal, gangster, socialist, welfare-statist, and even minarchist all share this: they are willing to condone naked aggression, for some reason. The details vary, but the result is the same — innocent lives are trampled by physical assault. Some have the stomach for this; others are more civilized — libertarian, one might say — and prefer peace over violent struggle.

As there are criminals and socialists among us, it is no surprise that there is a degree of criminal-mindedness in most people. After all, the state rests upon the tacit consent of the masses, who have erroneously accepted the notion that states are legitimate. But none of that means the criminal enterprises condoned by the masses are justified.

It’s time for libertarians to take a stand. Are you for aggression, or against it?

Notes

1. Another point: in my view, we are about as likely to achieve minarchy as we are to achieve anarchy. I.e., both are remote possibilities. What is striking is that almost every criticism of “impracticality” that minarchist hurl at anarchy is also true of minarchy itself. Both are exceedingly unlikely. Both require massive changes in views among millions of people. Both rest on presumptions that most people simply don’t care much about.
2. Though the case for anarchy does not depend on its likelihood or “feasibility,” any more than the case against private crime depends on there never being any acts of crime, anarchy is clearly possible. There is anarchy among nations, for example. There is also anarchy within government, as pointed out in the seminal and neglected JLS article by Alfred G. Cuzán, "Do We Ever Really Get Out of Anarchy?" Cuzán argues that even the government itself is in anarchy, internally — the President does not literally force others in government to obey his comments, after all; they obey them voluntarily, due to a recognized, hierarchical structure. Government’s (political) anarchy is not a good anarchy, but it demonstrates anarchy is possible — indeed, that we never really get out of it. And Shaffer makes the insightful point that we are in “anarchy” with our neighbors. If most people did not already have the character to voluntarily respect most of their neighbors’ rights, society and civilization would be impossible. Most people are good enough to permit civilization to occur, despite the existence of some degree of public and private crime. It is conceivable that the degree of goodness could rise — due to education or more universal economic prosperity, say — sufficient to make support for the legitimacy of states evaporate. It’s just very unlikely.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

For example, suppose Stan stabs his neighbor Victor to death. Arriving on the scene, a policeman breaks into Stan’s home without a warrant, in violation of the Fourth Amendment. He finds the bloody weapon. At Stan’s murder trial, the judge will not permit the prosecutor to introduce the knife as evidence, on the grounds that the knife is u201Cfruit of the poisoned tree,u201D the result of an unconstitutional search and seizure. Although he is in fact a murderer, Stan might well go free because the jury is not permitted to see the best evidence.

Origin of a Rule

It wasn’t always this way. At common law, and continuing for one hundred years after the passage of the Fourth Amendment, evidence of the defendant’s guilt was never excluded just because it was obtained illegally. The common law excluded evidence that was tainted by unreliability or suspect probative value — as with the hearsay rule — but probative evidence, regardless of its source, was admissible, since it tended to establish the truth, and, thus, help achieve justice.

In fact, the common law not only did not exclude illegally-obtained evidence, but it even allowed that evidence to retroactively justify what would otherwise be an illegal search and seizure. As stated in a 17th Century English legal treatise: u201CAnd where a Man arrests another, who is actually guilty of the Crime for which he is arrested, it seems, That he needs not in justifying it, set forth any special Cause of his Suspicion, but may say in general, that the Party feloniously did such a Fact, for which he arrested him … .u201D
[1]
In other words, at common law evidence of the defendant’s guilt provided a complete defense against charges that the search was a violation of the defendant’s rights.

Under the exclusionary rule, however, evidence can be altogether excluded from criminal trials, no matter how probative that evidence may be, if it was the product of an illegal police search. The exclusionary rule, therefore, is fundamentally different from common law rules of evidence that are designed to preclude only what is dubious and unreliable. The knife could have Stan’s fingerprints and Victor’s blood all over it, but if police discovered the knife while conducting an illegal search, the exclusionary rule ensures that this evidence is never considered at Stan’s murder trial.

Like so many bad things, the erosion of the traditional common law rule on the admissibility of illegally-obtained evidence began in the twentieth century. The Constitution was ratified in 1789, and the Bill of Rights, including the Fourth Amendment, was added two years later, in 1791. More than one hundred years afterwards, in 1904, the Supreme Court continued to apply the common law rule that evidence is admissible however obtained. Adams v. New York, 192 U.S. 585 (1904). It was not until ten years later, in Weeks v. United States, 232 U.S. 383 (1914), that the Supreme Court supplanted the long-standing common law tradition with the rule that evidence acquired in violation of the Fourth Amendment is inadmissible in criminal proceedings.

The Court reasoned that, without the exclusionary rule, the Fourth Amendment‘s u201Cright of the people to be secure … against unreasonable searches and seizuresu201D is hollow. As the Court wrote:

If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established [by] years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.

Thus, in 1914, the Court found the exclusionary rule inherent in the Fourth Amendment, even though it was neither required by the common law nor by the Fourth Amendment for its first hundred years. For over a century the Court somehow failed to realize that the Fourth Amendment was u201Cof no value,u201D since the exclusionary rule had not yet been invented.

Given that the exclusionary rule was announced over a hundred years after the Fourth Amendment was ratified, it is no surprise that the rule is not at all rooted in the actual language of the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. It says nothing about the exclusion of evidence that results from such seizures. It says nothing about the appropriate remedy for violations of the Fourth Amendment. The Supreme Court itself recognized this a few years after Weeks, in Olmstead v. United States: u201CThe striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment.u201D
[2]

Even after the Supreme Court in Weeks reversed the common law rule that illegal evidence is not inadmissible, the Court still did not apply the exclusionary rule to civil trials, in which evidence discovered by legal and illegal searches alike continued to be admissible.

Nor did the Court initially apply the rule to states. Originally, the exclusionary rule applied only in cases involving the federal government, because the Fourth Amendment restriction on unreasonable searches and seizures applied only to federal and not to state officers. The separate states were free to adopt their own rules of evidence. National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). Most of the states rejected the exclusionary rule and continued to allow both civil and criminal courts to consider all probative evidence. In fact, as Professor Akhil Reed Amar points out, many states had constitutional provisions similar or identical to the Fourth Amendment, yet not a single one of them interpreted that language as requiring that evidence uncovered in illegal searches should be excluded.
[3]

Moreover, even federal courts could admit illegally obtained evidence, so long as it was the result of a search by state police and not federal officials. Byars v. United States, 232 U.S. 28 (1927). This practice was ended in 1960, however, when the Court ruled that evidence obtained by state officers during a search which would have violated the Fourth Amendment if conducted by federal officers, is inadmissible in a federal criminal trial, even when there was no participation by federal officers in the search and seizure. Elkins v. United States, 364 U.S. 206 (1960). This set the stage for Mapp v. Ohio in 1961, which ruled that the Fourteenth Amendment applied the restrictions of the Fourth Amendment to the states, via the odious doctrine of u201Cselective incorporation.u201D

Thus, in 1961, the federal government, via its highest court, foisted the exclusionary rule upon state courts as well. For the past four decades, accused criminals across the United States have been able to avoid conviction by having the evidence of their crimes swept aside.

The Libertarian Approach

The glaringly obvious problem with the exclusionary rule is that it protects the guilty. Accused murderers and thieves manage to escape punishment, not by demonstrating that the evidence is flawed or supports their innocence, but by having genuine evidence of their guilt deemed inadmissible because of the way it was gathered.
[4]
Past estimates from the Bureau of Justice Statistics and the National Institute of Justice suggest that the exclusionary rule is responsible for the release of as many as 55,000 accused criminals per year.
[5]
The actual number may be almost three times as high.
[6]
Because of the exclusionary rule, these criminals are free to continue victimizing innocents, and within just two years half of them have been re-arrested.
[7]

Libertarians should be horrified by this trend. Libertarianism is first and foremost concerned with recognizing, defending, and vindicating the rights of non-aggressors. Because each person is the rightful owner of his own body, he may justifiably repel any uninvited efforts to violate its physical integrity. Self-owners are permitted to defend themselves from aggressive initiations of force. Where defensive efforts fail, however, self-owners may vindicate their impaired rights by punishing their aggressors.
[8]
From the libertarian standpoint, therefore, it is an injustice when an aggressor goes unpunished for violating a victim’s rights. The exclusionary rule allows just that: it excludes evidence of actual criminal guilt and enables guilty parties to avoid punishment.

The libertarian approach to the exclusionary rule is simple: does admitting illegally-obtained evidence violate individual rights? Is the exclusionary rule necessary to prevent rights violations? When the police search the person or property of a person suspected of committing an act of aggression (crime), the person is either guilty or he is not. If he is guilty — if he is an aggressor — then his rights are not violated. After all, an (actual) aggressor’s rights are not violated when he is punished, so why would they be violated if the police rummage through his property without the proper legal permission? Part of his punishment is that he cannot complain about the enforcement efforts that caught him. Thus, the common-law rule that evidence can retroactively justify an illegal search is eminently libertarian. For libertarians, our concern is for the victim. We want criminals to get the short end of the stick. When it comes to actually guilty people, then, the exclusionary rule provides a remedy that they do not deserve.

If the police illegally search the property of an innocent person, however, his rights are violated. However, the exclusionary rule does not provide a remedy for them. In most cases, innocent victims of illegal searches are simply never prosecuted because the search turns up no evidence against them. Even if the innocent defendant is prosecuted and the illegally-obtained evidence is introduced in court, presumably, since the person is innocent, it would not prove their guilt anyway. What the innocent victim of an illegal search needs is to be able to sue the state for damages for trespass and false imprisonment, not to exclude non-existent evidence. (Guilty defendants should have no right to sue for damages, however — it is their fault the police had to go looking for evidence, not the police’s.)

So: the exclusionary rule gives rights to the guilty that they do not deserve and does nothing for innocent victims of illegal searches. How can it be mandated by libertarianism?

Another argument is that illegal evidence must be excluded in order to incentivize police not to engage in illegal searches in the first place. But this argument is also flawed. As noted above, there is nothing wrong with u201Cillegalu201D searches — of guilty people. The problem is unreasonable or warrantless searches of innocent individuals. So we do not want to dissuade illegal searches in general — rather, the goal should be to minimize illegal searches of innocent suspects. However, if anything, the exclusionary rule tends to disproportionately deter searches of actually guilty people, since it is only here that police pay any penalty. Instead of excluding evidence, which helps the guilty and does nothing for the innocent, why not allow innocent victims of unreasonable police conduct to sue? This would tend to deter illegal searches of those not likely to be guilty. Such a system would give police an incentive to be very careful if the person is innocent or not very likely guilty, more so than in cases where guilt is very likely. Doing away with the exclusionary rule would thus shift the brunt of u201Cillegalu201D searches from innocent people to criminals — where it belongs.

In any event, suggesting that the exclusionary rule is necessary or required by libertarian or even constitutional principles, based on such utilitarian reasoning, is unpersuasive. If we want to make police violations of individual rights u201Cless likely,u201D surely there are much more effective ways of accomplishing it than refusing to look at evidence that a crime was committed. Allowing (innocent) victims of illegal searches to sue for damages, as noted above, makes sense. Other measures could be proposed as well. For example, laws could be restricted to those prohibiting aggression. If the peaceful possession of narcotics were legal, for example, then the problems related to obtaining evidence of narcotics use evaporates. The state’s role could be gradually reduced, replaced with private services, including private justice. Or the jury could be informed of its right to judge the law
[14]
as well as the defendant. The federal government could be restricted to those powers expressly enumerated in the original Constitution. And so on. Any such measures would deter or reduce, to some degree, bad laws, and consequently the problems of searches for evidence of violations of those laws. But intentionally ignoring genuine evidence of actual guilt? This is contrary to libertarianism, since it protects, instead of punishes, criminal aggressors. Clearly, the exclusionary rule is merely one possible remedy to illegal searches and seizures, and not even a very good one.

Libertarian Excluders

Nevertheless, the exclusionary rule has recently received emphatic approval from libertarians such as Timothy Lynch of the Cato Institute. In his article u201CIn Defense of the Exclusionary Rule,u201D Lynch presents an argument for the exclusionary rule that he thinks u201Ctake[s] the Constitution’s text, structure, and history seriously.u201D
[9]
It is apparent even to Lynch, however, that the text of the Constitution does not mandate the exclusionary rule. In fact, the text of the Constitution does not even mention the rule, as Lynch acknowledges (p. 745). And Lynch further concedes that the exclusionary rule is u201Cinconsistent with the common law,u201D including more than a hundred years’ worth of American court decisions (p. 746). This means that his argument does not fit comfortably with a good deal of constitutional u201Chistory,u201D either. Indeed, as Professor Amar notes, u201CSupporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial. Indeed, the idea of exclusion was so implausible that it seems almost never to have been urged by criminal defendants, despite the large incentive that they had to do so, in the vast number of criminal cases litigated in the century after Independenceu201D (Amar, u201CFourth Amendment First Principles,u201D p. 786).

If common law, constitutional history, the original understanding of the Fourth Amendment, and even libertarian principles do not argue for the exclusionary rule, what can Lynch find in its favor? Well, it’s the u201Cstructureu201D of the Constitution, you see, that mandates this result. The key concept in Lynch’s structural defense of the exclusionary rule is the u201Cseparation of powers principle.u201D The basic idea is familiar from any introductory civics class: the Constitution divides the powers of the federal government among the three branches. As Lynch puts it, u201Ceach branch is expected to remain within its sphere and to respect the powers that the Constitution has assigned to the other branchesu201D (p. 718). To ensure this outcome, the Constitution sets up u201Cchecks and balances,u201D mechanisms by which each independent branch of government may protect its unique powers against encroachment. Lynch maintains that the exclusionary rule is another such protective mechanism: in fact, he proclaims that it is u201Cthe onlyu201D effective means the judiciary has of preserving its right to issue warrants, guaranteed by the Fourth Amendment (p. 716).

The way Lynch sees it, the Fourth Amendment allows only the judiciary to issue warrants, and if the executive branch fails to respect this authority — for example, if the police conduct a warrantless search — then the only effective remedy at the court’s disposal is to exclude the evidence uncovered in that search. But Lynch does not believe the fundamental purpose of the exclusionary rule is to protect citizens’ Fourth Amendment rights. He admits, for instance, that the exclusionary rule provides no remedy for the innocent victims of illegal search — the ones who are never prosecuted because the search turns up no evidence against them.

Instead, Lynch argues that the fundamental purpose of the exclusionary rule is not to protect citizens but rather to protect the judiciary. If the executive branch attempts to erode the judiciary’s Fourth Amendment power to issue warrants, Lynch believes the appropriate judicial response is to exclude whatever evidence their unlawful searches produce. Lynch concludes that the exclusionary rule is justified because it helps to preserve the constitutional separation of powers.

But surely there is something wrong here. To begin with, Lynch goes too far when he calls the exclusionary rule u201Cthe onlyu201D effective judicial response to illegal searches by the executive branch. This claim overlooks the fact that for most of this country’s history the exclusionary rule did not exist, and it is only for the past 40 years that it applied to the states as well. Lynch would have us believe that until the Supreme Court created the exclusionary rule, there was simply no institutional brake on illegal searches — and that the only available and effective remedy is to exclude illegally obtained evidence. But as noted above, the exclusionary rule is poorly designed to really deter police harassment of innocent victims. And, no matter how u201Ceffectiveu201D the exclusionary rule is, it comes at a steep price: tens of thousands of violent criminals go free.

Not only is the exclusionary rule contrary to libertarian principles, it is contrary to constitutional principles as well. Lynch is simply mistaken in finding the exclusionary rule sanctioned by the Fourth Amendment. Nothing in the text of the Fourth Amendment gives even the slightest support for the practice of ignoring evidence of criminal guilt. As even the Supreme Court admits (see, e.g., United States v. Leon), the exclusionary rule is not a creature of the Constitution but of the judiciary itself.
[10]
If the exclusionary rule really were embedded in the Constitution, it would be difficult to understand why it took over a hundred years to discover this, and why it applies only criminal trials and not to civil trials as well.

Lynch’s separation of powers argument is unpersuasive because it is not clear from the Fourth Amendment that the judiciary has the exclusive power to issue warrants in the first place. All it says is that u201Cno Warrants shall issue, but upon probable cause… .u201D

But even assuming, for the sake of argument, that only the judiciary is constitutionally empowered to issue warrants, still this in no way justifies, much less requires, the practice of excluding evidence obtained without one. After all, the Supreme Court recognizes that in many instances the Constitution does not require police to obtain a search warrant at all. Exigent circumstances, for instance, allow police to makes searches without warrants.
[11]
But if police can legally search a suspect without obtaining a search warrant, the judiciary cannot be constitutionally required to exclude the evidence of those searches in an attempt to preserve its supposed monopoly on warrant issuing.
[12]

Then there’s the question of whether the exclusionary rule, even if it is sanctioned by the Fourth Amendment, should apply to the states. Lynch doesn’t explicitly argue that it should. Nevertheless, he approvingly discusses a case in which the Supreme Court declared that New Hampshire police had violated the Fourth Amendment (pp. 728—729). Lynch calls the decision u201Csound.u201D This assessment, however, overlooks the essential difference between the federal government and the states: the federal government is a government of enumerated powers, and completely lacks any power not explicitly granted in the Constitution, whereas the states do not derive their powers from the federal Constitution. Alexander Hamilton recognized this in The Federalist No. 32 where he wrote that under the Constitution u201Cthe State Governments would clearly retain all the rights of sovereignty which they before had and which were not by [the Constitution] exclusively delegated to the United States.u201D
[13]

The Bill of Rights — including, of course, the Fourth Amendment — was therefore largely redundant, because the powers it expressly denied to the federal government were never enumerated to begin with. Indeed, the Federalists opposed the inclusion of a Bill of Rights for fear that it would somehow imply more powers for the federal government. After all, why provide a limit to a power that did not exist? For example, why provide that Congress shall make no law abridging the freedom of speech, if no power to regulate speech had been given to Congress in the first place? Moreover, the very idea that the Fourth Amendment could u201Capplyu201D to the states is incoherent. The Fourth Amendment is a restriction on the power of the federal government — its very purpose was to retain the power of the states against federal usurpation. How could a limit on federal power, intended to preserve the power of the states, u201Capplyu201D to the states and restrict their power as well?
[14]

Libertarians should also oppose the exclusionary rule because it is a tool for expanding and centralizing federal power. The federal government cannot legally wield any power that is not specifically granted by the Constitution. According to the Tenth Amendment, powers not expressly delegated to the federal government are reserved u201Cto the states respectively or to the people.u201D Nowhere in the Constitution is the power to exclude probative evidence delegated to the federal courts. And nowhere in the Constitution is the power to impose rules of evidence on state courts delegated to the federal government. If these powers are not delegated to the federal government, then they must be among those powers reserved u201Cto the states respectively or to the people.u201D Simply put, the federal courts are not constitutionally empowered to exclude probative evidence — and they are certainly not empowered to enforce this rule against the states. The Fourth Amendment does not sanction the exclusionary rule, and even if it did, the Fourth Amendment should apply only against the federal government, not against the states.

In its current form, therefore, the exclusionary rule is a means by which federal courts illegally usurp powers that are constitutionally reserved to the states. Of course, libertarians must oppose the states as well as the federal government, since both by their nature commit aggression against innocent victims.
[15]
From the libertarian standpoint, however, it is better that government power be dispersed rather than centralized.
[16]
A weak federal government is preferable to a strong one, ceteris paribus. It is generally better for the federal government not to have a particular power, even if that power could be used to protect individual freedom. This is all the more true where the power in question is the power to exclude probative evidence, something that can only protect criminals. Criminals do not deserve protection, least of all from the federal government, itself a criminal organization.

Endnotes

[1]
2 William Hawkins, A Treatise Of The Pleas Of The Crown (Professional Books Ltd. 1973) (1721), p. 77, quoted in Akhil Reed Amar, u201CFourth Amendment First Principles,u201D 107 Harvard Law Review 757, at n. 30. For further discussion of how, at common law, probative evidence could retroactively justify a search and seizure by police, see id, at 767.

[2]
Olmstead v. United States, 277 U.S. 438, 462 (1928) (emphasis added). See also United States v. Leon, 468 U.S. 897, 906 (1984), noting: u201CThe Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure u2018work[s] no new Fourth Amendment wrong.’ United States v. Calandra, 414 U.S. 338, 354 (1974). The wrong condemned by the Amendment is u2018fully accomplished’ by the unlawful search or seizure itself, ibid., and the exclusionary rule is neither intended nor able to u2018cure the invasion of the defendant’s rights which he has already suffered.’ [citation omitted] The rule thus operates as u2018a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ United States v. Calandra, supra, at 348.u201D

[3]
Amar, u201CFourth Amendment First Principles,u201D pp. 764—769.

[4]
For examples, see Ralph Adam Fine, Escape of the Guilty (New York: Doral, Mead & Co., 1986), p. 247, and James J. Kirkpatrick’s column in the March 24, 1987 issue of the Washington Post. Fine discusses a case in which the Supreme Court reversed a murder conviction because the search warrant issued to police was later ruled defective. Among the evidence excluded by the Court was ballistic evidence linking the fatal bullet with the defendant’s gun. The convicted killer of a fourteen-year-old girl went free. Kirkpatrick’s column discusses another Supreme Court case in which a stereo thief managed to exclude the stolen loot from evidence because, while making a legal search of the suspect’s apartment, police violated his Fourth Amendment rights by lifting up the stereos to check their serial numbers. Further discussion of these cases may be found in Part II of Robert James Bidinotto’s excellent series u201CCrime and Consequences,u201D published in Ideas on Liberty, August 1989 (Parts I, II, III).

[5]
Edwin Meese III, u201CA Rule Excluding Justice,u201D New York Times, April 15, 1983. Cited in Bidinotto, u201CCrime and Consequences.u201D

[6]
Edwin Meese III and Rhett DeHart now estimate that 150,000 criminal cases per year are dropped or dismissed because of the exclusionary rule, 30,000 of them involving violence. See u201CThe Imperial Judiciary…And What Congress Can Do About It,u201D Policy Review, January-February 1997, No. 81.

[7]
Id. It must be pointed out, however, that not all 55,000 of the defendants who avoid conviction because of the exclusionary rule are u201Ccriminalsu201D in the libertarian sense. Many of them are non-violent offenders guilty only of victimless crimes — such as drug offenses — who therefore do not deserve punishment because they have not violated anyone’s rights. Nevertheless, in addition to protecting some non-violent defendants, the exclusionary rule is directly responsible for the acquittal of tens of thousands of violent criminals per year. See footnote 5 above.

[8]
For an elaborate discussion of how his own aggressive acts effectively u201Cestopu201D the aggressor from objecting to punishment, see N. Stephan Kinsella, u201CPunishment and Proportionality: The Estoppel Approach,u201D 12:1 Journal of Libertarian Studies 51 (Spring 1996), especially pp. 59—62.

[9]
Timothy Lynch, u201CIn Defense of the Exclusionary Rule,u201D The Harvard Journal of Law and Public Policy, Summer 2000 (vol. 23), pp. 711—751; Cato Policy Analysis version.

[10]
See Leon, supra.

[11]
For a complete list of the circumstances under which search warrants are constitutionally unnecessary, see Amar, u201CFourth Amendment First Principles,u201D pp. 764—769.

[12]
Another problem with Lynch’s reliance on structural features of the Constitution to argue that the exclusionary rule is necessary to preserve separation of powers, is that the Constitution, in Article III, Section 2, explicitly empowers Congress to regulate or restrict the appellate jurisdiction of the Supreme Court in all cases except those u201Caffecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.u201D In other words, Congress has clear constitutional power to restrict the jurisdiction of the Court, and even to abolish all lower federal courts. It is within Congress’ power to prevent federal courts (including the Supreme Court) from hearing Fourth Amendment cases. This would be completely compatible with the constitutional structure. How can it be u201Cunconstitutionalu201D or a breach of the original scheme of separation of powers for the Court to be deprived of the ability to exclude evidence obtained in violation of the Fourth Amendment, if it is constitutional for Congress to completely exclude the entire issue of violation of the Fourth Amendment from judicial review by the Court?

[13]
See also The Federalist Papers No. 39 (Madison), stating that u201Cthe proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objectsu201D; The Federalist Papers No. 40 (Madison), stating that u201Cthe general powers [of the federal government] are limited; and that the States, in all unencumbered cases, are left in the enjoyment of their sovereign and independent jurisdictionu201D; Slaughter-House Cases, 83 U.S. 36 (1872), referring to the general u201Cpolice poweru201D of the states; and James Wilson’s u201CSpeech at a Public Meeting In Philadelphia,u201D Oct. 6, 1787, in 13 The Documentary History of the Ratification of the Constitution 337, 339, stating u201CIt will be proper… to mark the leading discrimination between the State constitutions and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.u201D

[14]
It is worth noting that Lynch is a proponent of jury nullification. Timothy Lynch, u201CWhen Judges Overreach,u201D Cato.org, January 25, 2000. However, jury nullification is based on the idea that justice is paramount: that guilty people should be punished and innocent people acquitted, regardless of what the u201Clawu201D says. But by similar reasoning, Lynch should oppose the exclusionary rule because it causes actually guilty people to go free.

[15]
For this theory of government, see Murray Rothbard, u201CThe Anatomy of the State,u201D reprinted in Egalitarianism as a Revolt Against Nature and Other Essays.

[16]
For an excellent defense of this idea, see Gene Healy, u201CAgainst Libertarian Centralism,u201D available at www.LewRockwell.com. For a decentralist argument that nevertheless acknowledges the occasional superiority of federal power to state power, see Walter Block, u201CDecentralization, Subsidiarity, Rodney King and State Deification: A Libertarian Analysis,u201D European Journal of Law and Economics, 16: 139—147 (2003).

Patrick Tinsley [send him mail] is a second-year law student at Suffolk University Law School.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

What would have happened [...] if in accordance with his reelection promise, Woodrow Wilson had kept the U.S. out of World War I? [...] If the United States had followed a strict non-interventionist foreign policy, it is likely that the intra-European conflict would have ended in late 1916 or early 1917 as the result of several peace initiatives, most notably by the Austrian Emperor Charles I. Moreover, the war would have been concluded with a mutually acceptable and face-saving compromise peace rather than the actual dictate. Consequently, Austria-Hungary, Germany and Russia would have remained traditional monarchies instead of being turned into short-lived democratic republics. With a Russian Czar and a German and Austrian Kaiser in place, it would have been almost impossible for the Bolsheviks to seize power in Russia, and in reaction to a growing communist threat in Western Europe, for the Fascists and National Socialists to do the same in Italy and Germany. Millions of victims of communism, national socialism, and World War II would have been saved. The extent of government interference with and control of the private economy in the United States and in Western Europe would never have reached the heights seen today. And rather than Central and Eastern Europe (and consequently half of the globe) falling into communist hands and for more than forty years being plundered, devastated, and forcibly insulated from Western markets, all of Europe (and the entire globe) would have remained integrated economically (as in the nineteenth century) in a world-wide system of division of labor and cooperation. World living standards would have grown immensely higher than they actually have.

Okay. So, it was all Wilson’s fault. Before WW I, America was a shining city on a hill. Wilson really set us on the wrong course.

But wait. I think Lincoln is really the culprit here. For one, if the South had been allowed to secede, as was its right, or had won, World War I would not have turned out the way it did. So: no Lincoln, no War Between the States, no WWI, no WWII. (While we’re at it, let’s blame all the white slaveholders. They set in motion a chain of events that led to the War Between the States, just so they could have cheaper cotton.)

Okay, but before 1861, America was it. It was as close to minarchy as the world has seen (never mind ancient Ireland). Thank God for our liberty-minded forefathers, Jefferson, Madison and crew.

Hold on a second there. As Chantal Saucier has pointed out in these pages, the growth of the American Empire might be dated to Jefferson’s unconstitutional expansion of empire with the Louisiana Purchase in 1803. Had the unconstitutional Louisiana Purchase not taken place, we might have avoided the War Between the States, WWI, WWII, et seq. Maybe I should take down the prints of Jefferson paintings on my office wall, oui?

On second thought, I think the trouble started a little bit further back. The Constitution as ratified in 1789 was fine as it was. Boy, what a great achievement. But the Bill of Rights was added in 1791. If this had not been done, then the so-called "incorporation doctrine" — whereby the Fourteenth Amendment was held to "incorporate" most of the rights listed in the Bill of Rights and apply them to the states — probably would never have been invented. Thus, the erosion of federalism caused by this federal seizure of power might never have happened, and there would be stronger structural limits on federal action in place today.

Who am I kidding. The real trouble really started two years earlier. The Framers in 1789 had already agreed to add a Bill of Rights, as the price for ratification. I think I need to push it back a couple more years, just to be safe — since the real problem is that the federal convention called in 1787 merely to propose amendments to the Articles of Confederation exceeded its mandate by proposing a new Constitution. Which led, naturally, to the Bill of Rights, the War Between the States, WWI, WWII, and the erosion of federalism and hegemony of the central state. As Hoppe (Democracy, the God that Failed, p. 272) notes, the Americans "not only did not let the inherited royal institutions of colonies and colonial governments wither away into oblivion; they reconstituted them within the old political borders in the form of independent states, each equipped with its own coercive (unilateral) taxing and legislative powers. While this would have been bad enough, the new Americans made matters worse by adopting the American Constitution and replacing a loose confederation of independent states with the central (federal) government of the United States." We would have been much better off under the old Articles of Confederation. We were just fine, until then. Yes, that was America’s golden age: from 1776 to 1787.

Except … the transformation of the Union from confederation to federation, and ultimately to centralized, dominant state, was nothing but a natural result of the utopian idealism of the Declaration of Independence in 1776. Why these guys thought they could cut the ties to the traditional, monarchical, constitutional order and set up a new political order imbued with the spirit of democracy in its stead, but limit its growth with mere paper documents and platitudes is beyond me. After all, it had never been done before. What was Jefferson thinking?

Let’s face it, the American experiment has been a failure. I’m starting to think the trouble with America is … the Americans. Why did we revolt, anyway? Because of an amount of taxation imposed from Britain that is miniscule by today’s standards? Yup, 1776 is where the trouble started. (Incidentally, Maybe Hamilton is not the arch-villain, and Jefferson not the libertarian hero, that we’ve thought all these years. After all, didn’t Hamilton prefer a limited monarchy, or at least an aristocratic republic? As monarchy is preferable to democracy in many respects, can’t we say that Hamilton was arguably better than Jefferson, at least in this respect?)

Thank goodness I don’t know more about European history, or I might keep pushing the envelope back ever further, maybe back to the Garden of Eden. But need I really stop at 1776? Come to think of it, if not for the domination of America by all those New England WASPs, would we have had all this mess? Would we have had the Constitution, the War Between the States (all Presidents save Kennedy have been WASPs, no?), all the slave-owning that led to the War Between the States? Would we have had Lincoln, and Wilson, and Roosevelt? No, certainly not. (See also on this, Hans-Hermann Hoppe, "The Western State as a Paradigm: Learning from History," Politics and Regimes. Religion & Public Life, Vol. 30, 1997.) So, the problem is not Americans per se, but Yankee WASPs.

Which leads me to think, the real trouble started in the sixteenth Century, with that pesky Protestant Reformation. Couldn’t just leave well enough alone, could you, guys?

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

Readers interested in the sordid details can peruse these links. However here I want to make a narrow point. Sandefur repeatedly points to the evil of slavery and the need to end it as justification for the war. For example, he writes, admitting his hyperbole, "slavery is so evil that it was worth all the awful depredations of the Civil War to end it, and would have been worth more".

And yet he states the essential issue as follows: "The question of the Civil War is really two questions: first, Is there a Constitutional right to secede? If the answer to the first question is no (and it is), then the second question is, Was the South engaging in a legitimate act of revolution?"

He concludes that there is no constitutional right to secede (for reasons which are not relevant here). In other words, a State may leave the Union only: (a) with the permission of Congress; or (b) via a "legitimate act of revolution". Otherwise, if a State tries to quit the Union, the Federal government may use armed force to stop what Sandefur terms a "criminal conspiracy".

Since Congress obviously did not consent to the Confederate States’ secession, the question is whether it was a legitimate act of revolution. Now Sandefur states that it was not, because "the Southern states could not legitimately claim a right to revolt in defense of slavery". Revolution is an act in defense of rights, therefore, secession in furtherance of the violation of rights (slavery) is simply not revolution. The South was not responding to aggression by the North, and "its firing on Fort Sumter was therefore an initiation of force. The President being Constitutionally required to see that the laws — including the Supreme Law of The Land — be enforced, Lincoln was therefore right to enforce the Constitution, at point of arms, if necessary."

Note how Sandefur neatly links his passionate opposition to slavery and its moral justification for the war, to his theoretical framework regarding the constitutional right to secede. According to Sandefur, a state can secede if it gets permission from Congress; or if it is engaged in a legitimate revolution. However, a state seceding for the purpose of upholding slavery is not engaged in a legitimate revolution. In fact he tries to explicitly link slavery to the question of the legitimacy of revolution: "It is true that slavery is immaterial to the question of whether secession is Constitutional. But if we answer that question in the negative, we move to the second question [of whether there is a legitimate revolution]: and in that discussion, slavery is central."

But what I wanted to point out is this: slavery is completely irrelevant to Sandefur’s argument. Here’s why. Sandefur repeatedly states that legitimate revolution is one that is in response to invasions of rights by the federal government. As he writes, "revolution is justified only as a form of self-defense against rulers who have engaged in a train of abuses and usurpations against those individual rights which just governments protect. This alone distinguishes an act of revolution from a mere criminal conspiracy."

According to this theory, even if none of the United States had had slavery in 1861, it would still have been a "mere criminal conspiracy" for the South to secede, without permission from Congress. This is because the South, according to Sandefur, would not have been "able to point to a long train of abuses pursuing the design of reducing them to despotism". In other words, even if slavery had already been abolished, the Union would be justified in using armed force to subdue a seceding State, unless the State was engaged in "revolution" in response to acts of "despotism" by the Union.

Sandefur’s real position is that, barring acts of despotism by the central government, it may legitimately use armed force to prevent the secession of its States. This view would find even fewer libertarian adherents which is, I venture, the reason why he focuses on the evil of slavery — to mask the true implications of his theory.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

Where should libertarians stand? I suspect most mainstream (read: non-paleo) libertarians are with the liberals on the gay rights decision and with the conservatives on the affirmative action decision in Bollinger. After all, laws banning consensual sex are unlibertarian, and it is a good thing if they are overturned, or so it is argued. On the other hand, affirmative action practiced by state universities is unlibertarian, so the Court in Grutter v. Bollinger should have banned the affirmative action policy of the University of Michigan Law School. Case in point, the Center for Individual Rights launched the above-noted challenges to the University of Michigan’s affirmative action policies.

The Constitutional Scheme

Let’s assume for the moment that state laws banning gay sex and state university affirmative action policies are indeed unlibertarian — that they violate individual rights. Even if this is the case, the U.S. Supreme Court has no business overturning them. The federal government simply has no jurisdiction over these laws, any more than the divorce court in Panama ought to be able to overturn repugnant laws of, say, Hong Kong, or any more than the United Nations should be able to order the U.S. to shift to metric.

The U.S. federal Constitution was designed to provide various structural limitations on federal power. These limits include horizontal separation of powers and checks and balances (dividing federal power between co-equal legislative, executive, and judicial branches), as well as explicit limits on federal power listed in the Bill of Rights. More importantly, the Constitution established a federal government of limited and enumerated powers, and thus sets up vertical separation of powers between the states and the federal government.

The limited powers scheme of the Constitution protects individual rights because the federales are simply not empowered to violate individual rights. Thus, argued the Federalists, it is not necessary to list the rights that the federal government may not invade; it is better to simply rely on the fact that the federal government has only certain limited things it can do. In fact, when ratified in 1789, the Constitution did not contain the Bill of Rights — it was added in 1791. But the Antifederalists demanded a bill of rights, anyway, just to be sure. In any event, by withholding the "plenary" type of "police power" that normal sovereign states are said to have (the power to legislate in general, for the general protection and benefit of the populace), the Constitution in effect protected an open-ended set of individual rights.

But not only was the federal government not authorized to invade individual rights; it was also not empowered to do many things that state governments may do, such as outlaw murder. The central government’s inability to outlaw murder does not mean there is a right to commit murder, of course. The Constitution leaves to the states the role of protecting them from such private crimes.

More importantly for our purposes, the feds were also not granted the power to protect individuals from unwise or unjust state laws. For example, the Congress was not granted the power to prevent the sovereign states from setting up a state religion or censoring certain speech. This does not mean that states have a "right" to censor speech, but it does mean that the federal government is powerless to interfere with state laws just because they are unjust. The Constitution was designed primarily to establish, and strictly limit the power of, a central government. The states already existed and had their own state constitutions, which, along with the political process within the states, are the primary means of placing limits on state government power.

The federal government, as a government of strictly enumerated and limited powers, is thus different from the states which, from the perspective of the federal Constitution, are sovereign states with plenary power. This means that except where the Constitution explicitly limits state power, the states are free, within the bounds of their own state constitutions, to legislate what they wish.

Obviously, if the limits set forth in the Constitution were recognized by federal officials (though this is of course unlikely), the federal government’s ability to trample our rights would likewise be limited. Libertarians, therefore, ought to be in favor of members of the state having to follow the very rules they claim need to be followed to give the state legitimacy. (N.b.: Joe Sobran has written many great essays on federalism and the constitutional scheme.)

Judicial Review of Federal Action

In the original federal scheme, the Supreme Court is free to overturn unconstitutional federal laws. Here, I agree with Jefferson’s theory of "concurrent review," whereby each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of (federal) government action. Meaning the Supreme Court and the President can (and should) refuse to endorse or enforce a law it believes to be unconstitutional; Congressmen should refuse to vote for laws they believe to be unconstitutional, and so on. This is in contrast with the now-dominant doctrine of judicial supremacy, the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. (On concurrent review, see David N. Mayer, The Constitutional Thought of Thomas Jefferson 131, 259, 263, 269-72 (University Press of Virginia, 1995); William J. Quirk & R. Randall Bridwell, Judicial Dictatorship xiv, 10-11, 13 (Transaction Pub., 1995).)

Thus, for example, if Congress had enacted a law censoring certain speech or publications, the Supreme Court would have been justified in overturning it simply on the ground of ultra vires — that it is an act beyond Congress’ power. Note that the First Amendment, which was not added until 1791, is irrelevant to this analysis. With or without the First Amendment, Congress is not authorized to limit speech or the press. Of course, after the First Amendment was added in 1791, the Court could have overturned a federal censorship law as violating this amendment as well. But this argument would have been redundant and superfluous, since Congress is nowhere granted the power to censor speech.

Likewise, a federal statute limiting gun rights would be unconstitutional since Congress is nowhere empowered to do this. Proponents of gun rights for this reason should not rely so much on the poorly worded and much-debated Second Amendment; even if, as gun opponents charge, the Second Amendment does not provide an "individual" right to bear arms, still, Congress is nowhere empowered to regulate or ban the ownership of weapons. Even if there were no Second Amendment — as there was not from 1789 to 1791 — federal laws regulating gun ownership are simply unconstitutional. (Further: even if the Second Amendment does not protect a right to bear arms, this fact cannot be argued to show that there is not such a right, since the Ninth Amendment prohibits such an inference.)

Federal Judicial Review of State Laws

As is clear from the preceding discussion, the Constitutional scheme was not designed to empower the federal government, through its courts, to strike down repugnant state laws. In fact, this would require specifically enumerating a power to strike down state laws, which power is nowhere to be found in the original Constitution. Nonetheless, modern Constitutional jurisprudence holds that the federal Supreme Court can strike down state laws that violate most of the "important" rights specified in the Bill of Rights, even though the Bill of Rights is really just a listing of limits on federal powers, which was meant only as an exclamation point to emphasize that the federal government is one of strictly limited and enumerated powers. In other words, a constitutional structure meant to limit federal power and its ability to interfere with the people and the states, has been used by the federal government as a warrant to expand its power over the states.

How did this happen? It is another legacy of Abraham Lincoln and his illegal War on the South — in particular, the Fourteenth Amendment, and the "Incorporation Doctrine," which holds that the Fourteenth Amendment’s Due Process clause "incorporates" the "fundamental" rights in the Bill of Rights and "applies" them to the states. This means that Congress and the federal Courts are empowered by the Constitution to nullify state laws that violate these fundamental rights.

Libertarians should oppose this view for several reasons. First, the Fourteenth Amendment was unconstitutionally ratified. Second, the Due Process clause was never intended to "incorporate" the rights in the Bill of Rights. It simply makes no sense that it would have: the Bill of Rights, as noted above, was simply a safety measure to ensure that the federal government would not exceed its limited powers. The First Amendment itself says "Congress shall make no law…". How could a limitation on Congress’s power be applied to the states? Moreover, the Courts have had to resort to the ridiculous doctrine of "substantive due process," as distinct from "procedural due process." How can due process not be merely procedural? (Cato Institute legal scholar Roger Pilon agrees that the Due Process and Equal Protection Clauses of the Fourteenth Amendment were not intended to provide federal protection for citizens’ fundamental rights; but wrongly, in my view, argues that the Privileges and Immunities Clause should be used for this purpose instead.)

Third, the Fourteenth Amendment and the Incorporation Doctrine that it spawned have eroded the vertical balance of powers between the states and the central government that was put originally in place so that the states would serve as checks on central tyranny. With Lincoln’s War Between the States and the Fourteenth Amendment as construed by federal judges, that check has been greatly weakened.

In order for the Court to overturn noxious state laws, it must seize powers it was not granted. If the federal government is free to ignore the limiting language of the Constitution and assume powers not granted to it, our rights are clearly less secure.

Let us now turn to the recent Supreme Court decisions.

Gay Sex

If Congress had enacted a federal law outlawing homosexual sodomy, the Supreme Court would have been justified in refusing to enforce the law on the grounds that Congress is simply not empowered to enact such laws. The right of the Supreme Court to strike down unconstitutional federal legislation derives from the judicial branch’s co-equal status under the Constitution and its independent obligation to abide by the Constitution.

There is no explicit limitation in the Bill of Rights with regard to laws concerning sex, but it does not matter, since Congress is not given the power to outlaw sodomy. To be sure, the Ninth Amendment does say that the failure to enumerate a right in the Constitution cannot be construed to mean that the right does not exist. Certainly, this could be used as a presumption that there is a right to engage in sodomy that may not be trampled by the federal government, or to buttress the argument that Congress is not given the power to regulate sexual interaction. But the essential point is that no right to sexual conduct needs to be found, since the Constitution nowhere authorizes such laws in the first place. There is no need to invent some murky "right of privacy" which is found in "penumbras" of "emanations" of the "specific guarantees in the Bill of Rights," which "emanations" "help give [the guarantees] life and substance".

However, as explained above, a state law banning gay sex simply does not violate the Constitution. The Constitution protects this right from federal invasion simply by denying to Congress the power to regulate it. But a state law infringing this right does not contradict the denial of legislative power to Congress. Accordingly, libertarians should oppose the decision in Lawrence v. Texas. While it does overturn a noxious, illegitimate law, the price is the assumption of unbridled, unconstitutional, unlimited power by the federal government’s judicial branch.

Moreover, the decision is completely indefensible, even under existing Constitutional jurisprudence. Under current Constitutional law, any challenged state law that restricts liberty is "scrutinized" by the federal courts, to determine whether the law is consistent with the rights protected by the Due Process Clause of the Fourteenth Amendment. As Justice Scalia explains in a brilliant dissent, laws that limit so-called fundamental rights are given "heightened" scrutiny. Fundamental rights are those that are "deeply rooted in this Nation’s history and tradition." However, "All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest." In other words, a law restricting a "fundamental" right will be found unconstitutional unless "the infringement is narrowly tailored to serve a compelling state interest." But a law restricting some non-fundamental right is usually upheld, so long as there is some rational basis for the law.

The majority could not with a straight face argue that a right to engage in homosexual sodomy is one traditionally recognized in this country, and therefore it does not declare the right in question to be "fundamental." This means that the law should be subjected only to rational-basis scrutiny, under which it should no doubt be upheld. Inexplicably, however, the majority simply engineers the result it wants, without being able to find a sincere or serious Constitutional basis for it.

Affirmative Action

The gay-sex case rests on the "fundamental rights" analysis of the Due Process Clause of the Fourteenth Amendment. The affirmative action cases, by contrast, concern that Amendment’s Equal Protection Clause (no state may "deny to any person within its jurisdiction the equal protection of the laws"). The argument is that affirmative action by state actors such as public universities discriminates based on race, which violates the equal protection provision.

Now what is the libertarian take on this? As noted above, the Fourteenth Amendment was unconstitutionally ratified and is also a bad idea, since it erodes federalism, a structural limit on federal power. If the central government is empowered to strike down local laws that it dislikes, this simply shifts more power to the federal government, thereby centralizing more and removing structural limits on federal tyranny.

There is yet another weakness in the criticism of state affirmative action policies, one that is usually not recognized by libertarians. In the Texas sodomy case, at least it is clear that the state law at issue is unlibertarian. The Texas law clearly violates individual rights to engage in victimless activities. Of course, this law should be abolished; the question for the libertarian is whether the federal government should be, or has been, empowered to do the abolishing.

In the case of affirmative action practiced by state schools, however, it is not so clear that anyone’s rights are being violated by the policy. Now this assertion may seem baffling to many libertarians who, like conservatives, seem to automatically assume that affirmative action is abominable. But upon close inspection of the practice the objections evaporate.

Let us step back. In the case of criminalizing sodomy, force is used or threatened against those who have not committed any aggression. Affirmative action laws that force private businesses to diversify in their hiring are also clearly unlibertarian. These laws threaten the property of those who have not committed any aggression.

But whose rights are violated by affirmative action policies practiced by public schools? The policy does not threaten the person or property of anyone. It simply is part of a test that determines whether or not someone has access to the property. Marginal white students who do not get admitted because of the policy — are their rights violated? It would seem that their rights are violated only if they have a right to attend the university, which is "taken" as a result of the affirmative action policy. But why do they have a right to attend a state university? If merely being denied admission means an applicant’s rights are violated, what about all the dumb kids who are denied admission? If a 10 year old applies he will not be admitted. Are his rights violated? If someone from out of state applies, he has a lower chance of being admitted. So what? How does this demonstrate any aggression or violation of the rights of the non-admitted masses?

By having any admission standards at all, some individuals or classes of people will be denied the "right" to attend the university. Clearly it cannot be argued that rights are violated by virtue of the university having standards for admission. So what, then, is the argument?

As best I can tell, libertarians who believe affirmative action policies are unlibertarian usually base this conclusion on Randian-style reasoning. Rand believed government was necessary. However, it is dangerous, because it is the sole, monopolistic wielder of force. So although individuals have a right to act both "rationally" and "irrationally," so long as no one’s rights are violated, government must be held to a stricter standard. In particular, government may only act "rationally" in wielding force. It does not have the luxury or discretion to act irrationally. Now all forms of collectivism, including racism, are irrational. Government, therefore, may not be racist or collectivist in its policies and decisions. Accordingly, a government agency such as a state university, may not use race as one its admission criteria. QED.

But this argument is unpersuasive. First, the standard for what is "rational" or "irrational" government policy is nonrigorous. Under libertarianism, the owner of private property is the one who gets to decide what to do with it. Ownership is simply the right to control. Of course, the owner’s own preferences, values, and judgments factor into his decisions of how he uses the property. But beyond saying that the owner has the right to control his own property as he sees fit, how can libertarianism distinguish between "irrational" and "rational" uses of property? As I have pointed out elsewhere, the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources. Libertarianism provides no objective way to classify uses of property as "rational" or "irrational" (except perhaps with reference to which actions generate profit and which generate loss, but surely we do not want to say that all non-profit uses of one’s property is "irrational" or "immoral" in the Randian sense).

The problem with public schools is that they are owned by a criminal agency, and supported by stolen property. Of course they should be shut down. But given that state universities exist, the question is simply, How should they be run? Well, if they are going to be schools, then they must do what private schools do: namely, own and control facilities, hire teachers, attract students, set admissions policies, and so forth. I.e., try to run the place, by and large, as a private owner would.

Would a private school ever employ affirmative action in its admissions policies? Apparently so. There seems to be an assumption among hyper-individualist libertarians that everything should be based on "merit," whatever that means. When the liberal points out that rich WASP "legacy" students get admitted into Ivy League universities based on their parents’ previous attendance or through political pull, rather than merit, conservatives and libertarians brush this off, although it is a perfectly good point. George W. Bush was probably admitted into Yale not because of merit, but because of his family connections. And so what? For the libertarian, this poses no problem: the owner of property can do what he wants with it. A college can set whatever admissions criteria it wants. It is not surprising most universities want to use merit as one factor, in order to attract bright students. It is also not difficult to see why a legacy system might develop.

As for affirmative action, it is not necessarily "irrational". Is it necessarily "irrational" for a university (private or public) to try to obtain a more racially-diverse student population? Who knows? What if the trustees of the university believe they can attract more and/or higher-quality students if they can claim they are more diverse? What if the trustees simply want to help out historically-disadvantaged minorities? What is wrong with wanting to give a leg up to minorities? What is irrational about wanting to work with, employ, or service one’s own kind? Any of these can be reasons for employing affirmative action.

Affirmative action by universities is not irrational. It is simply the exercise of authority over property rights. The problem with public schools is that they exist, not that how they decide to control the property that they have, given that they do exist.

Conclusion

To sum up, the problem with the gay sex decision is that the Constitution did not limit the power of states to enact such laws, nor did it empower the federal government to do anything about it. Further, the Fourteenth Amendment was illegally ratified, and is a bad idea to boot. Finally, using the Due Process Clause of the Fourteenth Amendment in order to strike down a law banning sodomy requires disingenuous, result-oriented reasoning.

Libertarians should also disfavor using federal courts to strike down affirmative action policies of state universities. For one, this would require the courts to rely on the illegal Fourteenth Amendment and its Equal Protection Clause. Moreover, unlike a law regulating sexual conduct, an affirmative action policy of a state university has no victims (in the libertarian sense). The problem is with the taxation that funds it, not with the university administrators setting admissions policies or otherwise using the property as if they own it.

Of course libertarians should oppose laws criminalizing victimless, consensual sexual activity. But we should not endorse unconstitutionally expanding federal power as the means for overturning such laws. That is like inviting a big mafia into your neighborhood to help restrain a smaller one.

As for affirmative action policies of public universities, the libertarian should oppose the very existence of such universities, and the taxation that supports them. However, we should not advocate granting even more power to an already too-powerful federal government so it can mandate to the states how to run their own institutions — especially if the power comes from a wrongheaded and illegally ratified constitutional amendment.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

Sandefur’s view is that Lincoln had the right to prosecute the Civil War in order to prevent the Southern states from seceding, because the states had no constitutional right to secede.

Non Sequitur

Sandefur’s entire argument is a non sequitur, since the conclusion (the USA was justified in attacking the CSA) does not at all follow from the assertion that the states had no constitutional right to secede. Even if the states were constitutionally barred from seceding (a big if), it does not imply that Lincoln’s cause was the libertarian one.

For example, states might have a natural right to secede even if they do not have a constitutional right. Surely a libertarian would not side with positive law over natural law when arguing whether state force is justified. So what if there is not a right to secede enshrined in positive law? Positive law also does not recognize my right to be free from taxation or conscription, despite my having these rights.

And even if the states had neither a constitutional nor a natural right to secede, this still does not imply that Lincoln’s war was legally or morally justified. In law and in justice, the response to an unlawful action must be proportional to the offense. It is doubtful that causing the deaths of 600,000 people in response to what is, at most, basically a breach of agreement, is consistent with principles of justice and proportionality. Just as executing a bubble gum thief is unjust, so mass murder and invasion is an unwarranted response to one state’s quitting its agreed-upon association with other states.

And the fact that states are themselves in reality little more than criminal gangs makes it even harder to justify a Civil War—like response. If Mafia A and Mafia B agree to a perpetual criminal consortium, and Mafia A some day decides to go its own way, Mafia B is not justified in conscripting innocent civilians under its dominion and using them to murder the conscripts and other innocents under the control of Mafia A.

Natural Law versus Government Law

And finally, even if the federal government had a clear constitutional right to wage war against the South — aren’t we supposed to be libertarians here? Don’t we care more about what is right and wrong, what is justified and not, than about what happens to be the state’s current laws and decrees? Why do we care so much what is constitutional or not, when we are talking about libertarian principles of right and wrong? Income tax is constitutional. Is it thereby libertarian? Prohibition was at one time constitutional. Did that mean jailing vintners was justified?

Similarly, how can the War of Northern Aggression be justified merely because some state’s positive laws allegedly "permit" it? Let’s see: we have a war waged by a large, clearly non-minimal, non-libertarian (i.e., criminal) state (the USA), using massive force (taxation, regulation, conscription) against its own citizens and killing hundreds of thousands of foreign citizens (those of the CSA). In prosecuting the war, the USA repeatedly violated individual rights and the international laws of just war. One would think the libertarian presumption would be that the war and the state that waged it would be clearly unlibertarian, regardless of the positive laws that might permit it.

But no; apparently, it works like this, according to libertarian Civil War apologists: slavery was an evil practice; ergo, it is somehow acceptable under libertarian principles for one criminal state to conscript, tax, regulate, kill, maim, steal, loot, torture, intimidate, centralize, and commit mass murder — so long as later on these actions can be colored as having been done "in order to" stop slavery. In other words, although libertarianism holds that aggression is impermissible, wrong, and immoral, there’s an exception: if the aggression is "meant" to help bring about the liberation of some black slaves, then it’s okay.

The Fiction of "The People"

Another problem with Sandefur’s approach is his extensive reliance on legal fictions. He had stated in his first article that it was not "States" that were parties to the Constitution, but rather, the "whole people of America." Therefore, as the Constitution is not a "treaty" between separate States, none of the States can "withdraw" from the treaty. States cannot "break the constitutional compact," because they are not parties to it; "the people" as a whole are the parties to it.

I responded that the Constitution itself provided, in Article VII, that "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same" (emphasis added). Therefore, the Constitution was established "between" the first nine States to ratify, upon New Hampshire’s ratification (it was the ninth). This of course implies that it was individual states that could either join, or not join, the union of states defined by the Constitution. As an example, if one of the thirteen American States, such as Rhode Island, had decided not to ratify, there would have been a Constitution by and between twelve United States, with Rhode Island being left out of the compact.

In his latest response, Sandefur uses much space making the irrelevant side-point that it is not proper to call the Constitutional compact a treaty, and cites Federalist Papers and other documents to show that a Constitution "was regarded" as "different" from a treaty. Alright, fine, the federal compact is somewhat different than a classic treaty. So what? There are lots of sui generis "international" entities or organizations, such as the United Nations. Standard principles of contract and treaty interpretation of course still apply when construing the meaning and effect of the terms used in the founding documents. Whether we should regard the Constitution as a treaty or not is irrelevant to my point. Call it what you like, the Constitution still provides that it is effective only between the states ratifying it, after at least nine of them have ratified. This of course implies that the Constitution is like an agreement, or treaty, between the parties to it, i.e. the states that ratified it.

Sandefur repeats and presses the argument that the Constitution "was created" by "we the people" not by "we the states." But what about my previous point that, if a state such as Rhode Island had not ratified, then the new US could not force them to join? Sandefur seems to admit this is true (he quotes Madison to this effect), "[b]ut this does not contradict the fact that where the Constitution was ratified, the people of the United States become one people for particular purposes — that the Constitution was ratified by the people and not by the states."

Hunh? What the heck does this mean? How, exactly, is it that "the people" "ratified" the Constitution? This kind of reasoning heavily relies on "social contract" type legal fictions. Consider the implications of what Sandefur is claiming: If the so-called "representatives" from 13 states arrive at a convention, hammer out a document beginning "We the states agree to the following" and the state governments then ratify this document, then it’s a compact "among the states." But, see, if these same representatives convene and forge a document beginning, "We the people of the states agree to the following" — and the states duly ratify, then it’s now some kind of irrevocable agreement "among the people"?

How, exactly? Isn’t there some sleight of hand going on here? How exactly did these government employees cause "we the people" to irrevocably bind ourselves to anything? Just because the representatives arrogate to themselves the right to decide for their neighbors?

Are We Libertarians or Mere Parsers of Government’s Holy Writ?

Libertarian ladies and gentlemen, let’s step back a second from all the legal fictions and the romanticized, nostalgic notions about the 18th century and examine what the real issue is. We libertarians oppose aggression, whether committed by states or by private criminals. We therefore oppose unrestricted states, because they are dangers to liberty. When we see what appears on its face to be an extreme case of aggression, committed by a state that is clearly not a minimal state, a state that is blatantly disregarding the limits set out for it in the Constitution — and when we see that one of our own claims that the apparent aggression is actually consistent with libertarianism, we are entitled to examine these claims closely.

Now the CSA was surely not a libertarian minarchy. It systematically violated individual rights, as all states in history have. And so did the USA. By any libertarian standard, both CSA and the USA were unjustified, criminal, unlibertarian entities.

In any event, the USA was clearly a large state grown far beyond proper boundaries, even by classical liberal standards. And Lincoln violated the Constitution repeatedly, as Sandefur acknowledges. And 600,000 people were killed (murdered, one might say). And a rapidly growing centralized state was set in motion, one that has continued to grow and become more invasive to this day.

Clearly this is a prima facie case of unlibertarian, unjustified, wicked, immoral actions committed by an unlibertarian, criminal, non-minarchist state. And yet here we have a libertarian, writing in Liberty magazine, seeking to justify this. And his reasons are… that he can’t find in the Constitution a "constitutional right to secede"? What? What does this have to do with anything? How does the lack of textual support for a constitutional right to secede justify the murderous actions of Lincoln et al.? Have we forgotten who we are? We are libertarians! We should cringe at the thought of the taxation, the conscription, the dispossession, the theft, the bloodshed, the lives lost and ruined, by the Civil War. The hundreds of thousands of poor, young men murdered by minie ball and bayonet. Men with their heads split open, men dying in pain and fear and misery on strange ground. We should oppose this with all our passion. We should not sift through government documents trying to find some "implied" sanction for government tyranny. We should not do the state propagandists’ work for them.

We have this marauding state pouncing all over this beautiful continent, growing larger, disregarding its paper limits, killing, maiming, seizing — and one of our brethren defenders of liberty seeks to justify all this…because he can’t find textual support for a right to secede? No. No. I cannot justify the misery visited upon black slaves by their masters. But neither can this murderous aggression be justified.

Trotting out these ridiculous legal fictions does not change anything. Sandefur says it was "we the people" instead of "the states" who "really" ratified or "joined" the Constitution. This does not hold water. First: "the people" never ratified anything. Lysander Spooner explained this long ago in No Treason. No. VI, The Constitution of No Authority. Consider Georgia, one of the original 13 states to form the USA. Did all of its citizens ratify the Constitution? No. Did all of them ratify, at least, through representatives? No — blacks and females and minors and many others under the state’s jurisdiction didn’t select its representatives. And what about those who voted against the representative or his policies? Could the representative bind them too? (Are libertarians supposed to be democrats now?)

And even if there had been a unanimous vote by all the citizens in favor of ratifying the Constitution — why do we assume they could not change their minds later? After all, our fundamental rights are said to be inalienable; one may not sell oneself into slavery, for instance.

And even if there were unanimous consent by all the people of a state, this does not bind future generations. When did the generation of 1861 reaffirm the union? Jefferson knew that one generation could not bind the next: "no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” (Thomas Jefferson to James Madison, 1789)

Lack of Power

As I stated in my original comment,

[W]orst of all in my view, Sandefur tries to show that there was no "right to secede" built into the original constitution; there was no explicitly recognized "permission" to secede. Sandefur here appears to miss the entire concept of enumerated and limited powers, i.e., the idea that the federal government has power to do only that which is authorized by the Constitution (see ninth and tenth amendments). It does not matter whether the Constitution explicitly provides for the right to secede. What matters is whether the Constitution empowers the federal government to go to war against a seceding state. This power is not granted. (Just take a look.) Therefore, the right to secede is implicit in the very structure of the Constitution. […] The Constitution nowhere authorizes or empowers any branch of the federal government to prevent a state from seceding. We do not need to find "permission" for States to secede; rather, the federal government has to find "permission" (authorization) in the Constitution, to stop secession.

This is one of the most powerful constitutional objections to the War of Northern Aggression — for those who have some appreciation for the importance of structural limitations on state power, such as federalism and limited and enumerated powers. What is Sandefur’s response? He simply lists some of the powers enumerated in the Constitution, without telling us which one actually authorizes the forceful stamping out of secession. It must be buried in there somewhere. He writes:

The Constitution — among other things — 1) is the Supreme Law of the Land; 2) guarantees to every state a republican form of government; 3) requires the president to see that the laws are faithfully executed; 4) guarantees the privileges and immunities of citizens when they travel interstate; 5) prohibits states from entering into any compact with another state absent congressional permission; 6) prohibits states from entering into any confederation at all; 7) preserves every state’s right to two senators.

But this proves nothing. Of course, if a state is no longer a member of the Union, then these rules simply don’t apply. As I pointed out previously, Sandefur’s argument re point 2) above is specious, because Art. IV, Sec. 4 merely guarantees "to every State in this Union a Republican Form of Government." If a State secedes, it is no longer, of course, in the Union.

So what does he say to this? Why can’t a state simply stop being a member of the Union, and thereby render the clause inapplicable to that state? Sandefur says that the powers he listed above "would all be rendered meaningless, were a state able to secede unilaterally." Poppycock. First, this kind of argument — making up new powers that are "necessary" to carry out the others — can only be taken so far, if one is truly concerned about limiting government power. For more on this, see Randy Barnett, "Necessary and Proper," UCLA Law Review 44 (1997): 745. I note that Sandefur didn’t use more insidious examples, such as the power to levy income taxes or to conscript soldiers — I suppose that, if states are able to secede, that "renders meaningless" the feds’ power to tax and conscript (boo hoo).

Second, let’s do a gedankenexperiment. Imagine that tomorrow, the 28th Amendment is added to the Constitution, reading: "Any state may, by an act of its legislature, secede from the United States." Now Sandefur might not like such an amendment, but clearly this is both logically and constitutionally possible. In this case, would the mere presence of this provision "render meaningless" the other powers granted to the federal government? Of course not.

Sandefur has to argue the power to prevent secession is "implied" because it is obviously not explicitly enumerated. If the states were really irrevocably binding themselves to the union with no right to secede, and empowering this new federal government to go to war against any of them that tried to quit the union, one would expect this to have been explicitly stated in the Constitution. Even if voluntary slavery agreements were legal, before enforcing such an agreement we would rightly demand that the would-be slave owner provide clear proof that the would-be slave has actually, explicitly, signed his rights away. It would not be left to implication. Of course, the federal power to conquer seceding states was not explicitly stated in the Constitution, because if it had been, the states would never have ratified it. There is no power to stamp out secession, enumerated or implied. Even if it is implied, but not explicitly stated — that’s not good enough. The central state needs more than an "implied" power to even begin to justify waging war and killing almost a million people.

Sandefur thinks he is defending the rights of slaves and of "good" government versus "bad" government. In thrall to modern legal fiction and romanticized notions of the state, he endorses state tyranny, unlimited government, mob rule, and mass murder, all in the name of liberty.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

by Stephan Kinsella

Unlike many libertarians who dally with socialism before seeing the light, I have never been attracted to leftism. Indeed, although I of course welcome former pinkos to our ranks, I’m always a bit suspicious of anyone who could ever be swayed by that bunk.

Born in 1965, I was reared in a small town near Baton Rouge, Louisiana. My natural aversion to leftism stems from this upbringing. The milieu — if South Louisiana can be said to have one — was nominally Democratic, but relatively apolitical, culturally conservative, and Catholic. I can’t recall ever meeting any open or hardcore leftists until college.

There were other contributing factors that made me ripe for libertarianism. For one, I have always been strongly individualistic and merit-oriented. This is probably because I was adopted and thus have always tended to cavalierly dismiss the importance of “blood ties” and any inherited or “unearned” group characteristics. This made me an ideal candidate to be enthralled by Ayn Rand’s master-of-universe “I don’t need anything from you or owe you anything” themes.

Another factor is my strong sense of outrage at injustice, which probably developed as a result of my hatred of bullies and bullying. I was frequently attacked by them as a kid, because I was small for my age, bookish, and a smartass. Not a good combination.

I attended Catholic elementary and high school in Baton Rouge. I had a love-hate relationship with Mrs. Reinhardt, Catholic High School‘s librarian. When she was not expelling me and my cronies from the library for pulling pranks, she would recommend books to me, as she knew I was an avid reader of both fiction and nonfiction. One day she recommended Ayn Rand’s The Fountainhead to me. (I believe this was in 1982, when I was a junior in high school — the same year Rand died.)

“Read this. You’ll like it,” she told me. Ex nihilo — something. Rand’s ruthless logic of justice appealed to me. I was thrilled to see a more-or-less rigorous application of reason to fields outside the natural sciences. I think this helped me to avoid succumbing, in college, to the simplistic and naïve empiricism-scientism that most of my fellow engineering classmates naturally absorbed. Mises’ dualistic epistemology and criticism of monism-positivism-empiricism, which I studied much later, also helped shield me from scientism.

By my first year of college (1983), where I studied electrical engineering, I was a fairly avid “Objectivist” style libertarian. I had read Henry Hazlitt’s Economics in One Lesson and some of Milton Friedman’s works, but I initially steered clear of “libertarian” writing. Since Rand was so right on so many things, I at first assumed she — and her disciples Peter Schwartz and Leonard Peikoff — must be right in denouncing libertarianism as the enemy of liberty.

And yet in my reading I kept coming across libertarians, whose views seemed virtually identical to Rand’s “capitalist” politics. Finally, out of exasperation at trying to reconcile Rand’s denunciation of libertarians with their seemingly similar views, I read Rothbard’s For A New Liberty, and then several other works, such as Nozick, the Tannehills, David Friedman, etc. Before long I realized Rand’s minarchism was flawed. Individual rights entail anarcho-capitalism; a state, even a minarchist one, necessarily violates the individual rights that Rand so passionately championed. Rand made a lot of sense on a lot of issues, but her arguments in favor of government were strained.

I remember attending my only Objectivist conference, in Dallas, with my good friend Jack Criss (a libertarian radio talk show host from Jackson, Mississippi). Entitled “Meeting of the Minds,” the conference showcased Objectivist stars David Kelley, John Ridpath, and Alan Gotthelf. I believe this was around 1988, before David Kelley had been purged from official Objectivist circles for daring to praise Barbara Branden’s biography The Passion of Ayn Rand. I had corresponded with Kelley who was gracious enough to take time to reply (this was before email) to my precocious and presumptuous questions. I have always admired and respected Kelley.

I had several stimulating conversations with him at the conference, mostly on epistemology and philosophy. But I remember at a reception one of the students was telling how he had taken his copy of The Passion of Ayn Rand and burned it in a private ceremony in his mom’s back yard, when he realized how “evil” it was. I think he sought to gain points among his audience by relating this tale. I recall Jack and I looking at each other with cocked eyebrows. “Book burning.” Yes. Well. That was the last and only Objectivist conference I ever attended.

In the late-80s I started publishing columns in the LSU student newspaper, The Daily Reveille, from an explicitly libertarian perspective. As my interests became more sharply political and philosophical, my girlfriend (later wife) and friends urged me to consider law school. I was by this time in engineering grad school. Unlike many attorneys, I was not one of those who had always wanted to be a lawyer. In fact it never occurred to me until my girlfriend suggested it over dinner, when I was wondering what degree I could pursue next, so as to avoid having to enter the workforce. At the time I thought one had to have a pre-law degree and many prerequisite courses that engineers would lack; and I feared law school would be difficult. I remember my girlfriend’s chemical engineer father laughing out loud at my concern that law school might be more difficult than engineering. In retrospect, I can say that law school is not easy, it is a lot of work — but it is not that conceptually difficult. Lots of morons graduate from law school.

By 1988 I was in law school, and becoming a more well rounded libertarian, having read by this time Rothbard, Mises, Bastiat, the Tannehills, and a non-trivial portion of the books offered in the Laissez-Faire Books catalog. In that year there were two significant events in my life, from a libertarian perspective. One was Hans-Hermann Hoppe’s controversial and provocative article in Liberty, “The Ultimate Justification of the Private Property Ethic” (related articles linked here). In this article Hoppe sets forth his “argumentation ethics,” which holds that the libertarian private property ethic is implied in the very activity of argumentation — because those engaged in argumentation already presuppose the value of conflict-avoidance and the ability to control property and thus, those arguing in favor of socialism contradict themselves.

The second thing was that I encountered the legal principle of “estoppel” in my contracts class. This is the ubiquitous legal principle that precludes someone from asserting a legal claim or position that is inconsistent with earlier statements or behavior. I remember sitting in contracts class, as Professor Morris lectured on this topic, thinking “Eureka!” to myself, as I began to see that the concept of estoppel meshed perfectly with libertarian logic (and also with Hoppe’s argumentation ethics). The libertarian non-aggression principle holds that force may only be used in response to (initiated) force. There is a nice symmetry here. One may use force, if and only if it is response to initiated force (aggression).

I saw in class that day that the principle of estoppel could help explain and justify the non-aggression rule. Force was justified against an aggressor, because having used force himself he would be estopped from objecting to retaliation. For him to assert that force is wrong — which he must do in order to object to retaliation — would contradict the “force is permissible” maxim underlying his own act of aggression. He is “estopped” from asserting a claim inconsistent with that underlying his earlier behavior.

My estoppel theory complements and draws on Hoppe’s argumentation ethics. For years I believed that I first came up with my estoppel theory and then read Hoppe’s work, and linked the two together. Now I am not so sure, and think that I first read and absorbed Hoppe’s argumentation ethic, which made me fixate on the similar logic of estoppel when I coincidentally studied it in law school shortly thereafter.

I was at King’s College London—University of London in 1991, pursuing a master’s degree in law, when I produced the first draft of a paper arguing estoppel can help justify libertarian rights. Somewhat naïvely, I submitted it to King’s College Law School’s law review, whereupon it was summarily rejected. Not daunted, I submitted an improved draft to Tibor Machan for his journal Reason Papers. I had read many of Machan’s works, including his Human Rights and Human Liberties and Individuals and Their Rights, and he had been kind enough to respond to several of my letters. I remember speaking with him one night, about the submission, from a students’ pay telephone at King’s College in London, and then getting drinks at a pub with friends, none of them knowing or able to appreciate I had just spoken with a libertarian writer whose books I had read. Estoppel: A New Justification for Individual Rights was published in the Fall 1992 issue of Reason Papers (related papers).

Another shift in my libertarian life occurred in 1995, when I first met Lew Rockwell, Hans Hoppe, and Murray Rothbard. But let me back up. After finally completing all my book-larnin’, I had to earn a living and in 1992 started practicing law in Houston. When Hoppe’s second English-language book, The Economics and Ethics of Private Property, came out in 1993, I decided to do a review essay for a law review; the review was published in 1994 in the St. Mary’s Law Journal. I promptly sent it to Hoppe, who sent back a warm thank you note.

By mid-1994 I had moved to Philadelphia (I was there for three years, until I returned to Houston in 1997, where I reside today), and resolved to attend the John Randolph Club meeting in October 1994, near Washington, D.C. My primary goal was to meet Hoppe, Rothbard, and Rockwell. I was thrilled to meet them, and was able to get Murray to autograph my copy of Man, Economy & State, which he inscribed “To Stephan: For Man & Economy, and against the state —Best regards, Murray Rothbard.” Well, I know the nicer one-volume edition is out now, but just try to get me to part with my musty two-volume copy. Rothbard unfortunately passed away on January 1995, but I shall be forever grateful that I was able to meet him.

Since then I have attended many Mises Institute conferences, including every one of the annual Austrian Scholars Conferences, initiated, if I am not mistaken, in 1995. Over the years I gained more appreciation for Mises and Austrian economics, and for the unparalleled scope of Rothbard’s scholarly contributions to economics and political philosophy, and related fields. I am now not only an anarcho-libertarian, but a Misesian-Austrian. I have gained an increasingly deeper respect for Lew Rockwell and the singular achievement that is the Mises Institute. It has become my intellectual home.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

Stephan Kinsella Archives

But
– how’s this for a segue? – one-hit wonders are not restricted
to the world of pop. They populate the neocon world too, though
their hits are not as memorable. Case in point is Francis Fukuyama,
the obscure State Department official whose faux-deep 1992 book
The
End of History and the Last Man made a splash, despite
its non-rigorous, implausible, neo-Hegelian thesis. His subsequent
work has never matched it in popularity or notoriety. Fukuyama’s
latest offering, “The
Fall of the Libertarians” (Wall Street Journal,
May 2, 2002), is a weak and confused attack on libertarianism that
does not endanger his status as a neocon one-hit wonder.

Fukuyama
claims that libertarianism is doomed because of two apparently primary
(and faulty) tenets: first, its foreign policy views; and second
– get this – the libertarian stance on … biotechnology.
I see. We have reached the end of history, and it is necessarily
one that will be dominated by: war, interventionism – and no
cloning. Sort of a constrained, and strangely selective, vision
of the future. Unfortunately for libertarians, we are anti-war and
pro-cloning, and thus stand athwart the new permanent direction
of world history (which has ended). “Therefore,” our days are clearly
numbered. Huh? Let me get this straight: our views on legalizing
drugs and prostitution, abolishing regulations and taxes, etc. don’t
bug Fukuyama too much, but our views on – say it with me –
biotechnology, do? I repeat: bi-o-tech-no-lo-gy. Try to stifle
your yawns. Apparently, biotech has become a burning issue for neocons,
and for some reason they think it's become a pet issue of libertarians
as well.

First,
let’s take foreign policy (please). Unfortunately, and contra Fukuyama,
not all libertarians are anti-war and isolationist. See, for example,
Joe Stromberg’s discussion of libertarian interventionists –
whom he dubs “liberventionists”
– and these
blogs (link2,
link3)
concerning the pro-war views of some libertarians, such as Virginia
Postrel, David Brown, and Brink Lindsey. In fact, I would venture
to say that the more pro-war type libertarians would tend to be
pro-cloning, pro-choice, etc. Conversely, the libertarians who are
anti-war – the paleos – are less likely to be pro-cloning.
So I guess Fukuyama is attacking the modal libertarians (and leftists)
on cloning and attacking the paleolibertarians on the war issue.
But I digress.

Let’s
grant Fukuyama that most libertarians are anti-war and anti-state.
Where Fukuyama is wrong is in thinking this is some fatal flaw in
libertarian thinking or that it relegates us to obscurity. Some
of us might even counter that if the US had been more
“isolationist,” if we had not tried to “promote democracy and freedom
[sic] abroad,” if we had not so often “tax[ed] citizens” to “promote
collective interests,” then perhaps, just perhaps, we would not
be embroiled in as many conflicts as we currently are. And then
we would not need so many taxes to support even further interventions
to deal with the consequences of earlier interventions. And so on.

In
any event, opposition to war and state has been with us for some
time and there is no reason to think that it is all of a sudden
at the end of its rope. Does anyone think we have really reached
“The End of Opposition to War?” I suspect that as long as there
is war, there will be those pointing out that it is wrong, just
as there will be victims who oppose crime, so long as there is crime.

Bizarrely,
however, Fukuyama devotes the bulk of his attack to libertarian
views on biotechnology – in particular, our alleged
“support” for cloning. My first reaction is: Huh? (Or do I repeat
myself?) Our former federal government employee writes:

The second
area in which libertarians have overreached themselves is in biotechnology.
Here they join hands with the New York Times and important
parts of the American left in opposing restrictions on human cloning
currently under debate in the U.S. Senate. Many libertarians oppose
not just a ban on research cloning of human embryos, but on reproductive
cloning as well (that is, the production of cloned children).

Let’s
allow that libertarians indeed oppose a federal law banning cloning
(e.g., S. 790, under consideration
in the Senate). Is it because we are leftists or libertines at heart?
No. The simple reason is that libertarians are in favor of constitutional
restrictions designed to limit government’s ability and tendency
to tyrannize peaceful citizens (isn't Fukuyama?). One important
restriction in our written Constitution
is that it grants only enumerated
and limited powers to the federal government – unlike
the states, which are seen, from the perspective of the federal
Constitution, as having plenary, “police” powers. The structure
of the federal Constitution, along with the ninth
and tenth amendments, makes this scheme clear. For the
most part, the listing of rights in the Constitution
and the Amendments
(including the Bill of Rights) is superfluous, meant only to put
an exclamation point on what is already implied in the very structure
of the Constitution and our erstwhile federal scheme.

Accordingly,
certain federal powers are explicitly enumerated in Art.
I, Sec. 8 of the Constitution. But if there is no enumerated
power to take a proposed action, the federal government simply is
not authorized to do it. Coming back to cloning – there is
nothing in Art. I, Sec. 8 or elsewhere in the Constitution that
empowers Congress to restrict cloning (and the argument that the
interstate commerce clause empowers Congress to regulate activities
that “affect” commerce is complete
bunk; link2).
Congress can only regulate cloning by disregarding limits placed
on its power by the Constitution that authorizes its very existence.
Surely it is reasonable for even neoconservatives to be a little
concerned when the most powerful military and police institution
in world history blatantly disregards the paper limits placed on
it.

How
can Fukuyama support obviously unconstitutional federal restrictions
on cloning, while endorsing the “liberalism” and “natural rights”
views of the Founding Fathers and Thomas Jefferson? Surely their
liberalism included the original constitutional system which limited
the federal government to enumerated powers. So, is Fukuyama in
favor of “the American political tradition,” or ain’t he? If he
is, he cannot support federal anti-cloning legislation. Or does
he think the Constitution actually does give Congress the
power to regulate cloning? If so, where is it enumerated? Or does
he think the Constitution should be amended to eviscerate federalism
and remove all limits on Congress’s power? I’m confused. Or more
likely, Fukuyama, the former State Department official, is.

Fukuyama
continues:

Libertarians
argue that the freedom to design one’s own children genetically
– not just to clone them, but to give them more intelligence
or better looks – should be seen as no more than a technological
extension of the personal autonomy we already enjoy. [...] There
is no cause for worry if eugenics is practiced by individuals.
The latter could be counted on to make sound judgments about what
is in their own and their children’s best interests.

Libertarians
do not maintain that “There is no cause for worry if eugenics is
practiced by individuals.” We just don’t think “cause for worry,”
by itself, justifies making the “worrisome” conduct illegal (good
thing, for I find many of Fukuyama's views “worrisome”). Rather,
it is only aggression – i.e., using the body or property
of others without their consent – that may be outlawed and
regulated, for only the initiation of force justifies the use of
force in response. Elsewhere, Fukuyama implies that “inflicting
harm” justifies “government intervention.” But government intervention
is always the use of force, and it is only justified in response
to harm that itself involves the use of force. Harm that is not
caused by aggression – for example, hurting someone’s feelings
by insulting them, or reducing the value of a competitor’s company
by providing a better product – does not justify a forceful
response, i.e. a law.

Moreover,
libertarianism does not hold that individuals can “be counted on
to make sound judgments about what is in their own and their children’s
best interests.” Fukuyama probably does not understand that our
support of individual liberty is not contingent on the individual’s
wise exercise thereof. What he seems to miss here is that just because
libertarians do not believe a given federal law is justified, does
not mean they think the behavior left unregulated is “just
fine”. Apparently unlike neocons, we are able to separate private
morals from the political question of what behavior the government
should be allowed to regulate. And yet, we are the ones who
are supposed to have simplistic, unnuanced views? Ah, I see.

Fukuyama
also assumes, mistakenly, that libertarianism rules out any laws
prohibiting some cloning related actions. He provides the following
example:

A deaf lesbian
couple recently sought to implant an embryo to produce a child
who they hoped would also be deaf. Children do not ask to be born,
of course, but it is a stretch to assume the informed consent
of a child to be born deaf, or a clone, or genetically redesigned
in a risky experiment.

This
implies that libertarians “assume the informed consent of” the child
to be born deaf, and that we would therefore oppose laws (e.g.,
even state law) prohibiting such actions. Since a significant minority
of libertarians are not pro-choice,
it stands to reason that not all libertarians uphold the right of
parents to genetically harm their children. In fact, while
some libertarians might oppose all laws limiting “genetic” freedom,
in my view a libertarian case can be made that it does violate
the rights of the child for its prospective parents to intentionally
engineer a defect that the child would not have consented to. This
is an open question, the answer to which is not implied by libertarians’
opposition to unconstitutional federal anti-cloning laws.

Other
comments by Fukuyama are also confused and weak. For example, he
writes: “Research cloning of embryos [...] is a line that we should
cross only with trepidation.” This begs the question by assuming
“we” have to ask permission from someone before engaging in action,
and that the permission-giver should be very careful in handing
out this permission. But in a free society, we are not supposed
to live by permission, at the whim of government. Rather, it is
the other way around. Unless it can be shown that research cloning
is a violation of rights, the government has no business intervening.
It is the use of state action that we should endorse “only with
trepidation.”

Other
examples of confusion in Fukuyama’s reasoning include: “the community
of interest that is presumed to exist between parents and children
cannot be taken for granted [is] why we have laws against child
abuse, incest etc.” Well, no. We have laws against child abuse because
child abuse violates the rights of children, not because there is
some “community of interest” that is “presumed to exist.”

Or
take this comment:

Libertarian
advocates of genetic choice want the freedom to improve their
children. But do we really know what it means to improve a child?
It is hard to object to therapeutic aims, such as the elimination
of genetic tendencies toward diseases. [...] Parents, of course,
try to improve their children in all sorts of ways today, through
education, resources and upbringing.

So,
we don’t “really know what it means to improve a child,” yet elimination
of disease is an acceptable improvement (even if accomplished
through genetic engineering, presumably), as are use of education,
resources, etc.? Fukuyama also says that, unlike improving kids
through education, “the genetic stamp is indelible, and would be
handed down not just to one’s children but to all of one’s subsequent
descendants.” Well isn’t eliminating disease through biotech “indelible”
and handed down to descendants? Further, I am not sure that “indelibleness”
can be measured or quantified, but in any event “indelible” marks
are made all the time on children and descendants by a host of neocon
government laws and policies, such as: immigration policy, war,
welfare, drug laws, taxes, etc.

Like
other
neocons who have attacked libertarianism, Fukuyama fails
to mount a successful attack on liberty, individualism, and rights.
Libertarianism, though outnumbered by its statist competition, is
alive and well. As with Fukuyama’s premature proclamation about
the “end of history,” his report of the death of libertarianism
is greatly
exaggerated.

May
6, 2002

Stephan
Kinsella [send
him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

LewRockwell.com
needs your help. Please donate.

Greg Aharonian
is the Matt Drudge of the patent world, and his Internet Patent News Service newsletter
— better known as PATNEWS — is lively and interesting. While Aharonian
loudly decries the quality of software patents and the patent bar’s
apathy and unwillingness to agitate for improvements, he adopts
a mainstream, empiricist-utilitarian mindset, defending patent law
in general and insisting that the patent system can be improved
and reformed “if only” certain tweaks are made to the system. So
while Aharonian postures as a maverick, he nips only at the margins
of whatever the mainstream IP system happens to be, but does not
buck the system as a whole.

Case in point
is a recent PATNEWS (Dec. 16, 2001), in which Aharonian critiqued Stanford law professor Lawrence Lessig’s
new book, The
Future of Ideas (Amazon
link), and Lessig’s modest suggestions to limit patent rights
in some areas. Several replies to Aharonian’s comments (including
a reply by Lessig) were published in the Jan.
7, 2002 PATNEWS. Among these was a
letter from an anonymous “corporate patent attorney”
criticizing Lessig, in part, on the grounds that Lessig was not
a registered patent attorney and thus did not have the appropriate
credentials to make his critique.

The newsletter
offered other critiques of Lessig as well, by other patent attorneys
and law professors. Most of them echoed the criticism that Lessig
has no appropriate patent law credentials or experience. Many, as
is typical of patent attorneys, adopted the empiricist mindset that
we have to look at evidence to compare the costs and benefits, to
decide if patent law is a good idea — and then they go on to assume
it is justified, even though they cannot point to any evidence or
definitive studies in their favor. One even defended the patent
system yet would, “until my dying days … attack the quality of
issued patents and case law, both in deep trouble”. This author
even suggests (apparently not tongue-in-cheek) that if the
government really wants to “promote the arts and useful sciences”
(the alleged goal of patent law), it should supply “freebie patent
agents for the poor, just like it supplies public defenders for
the indigent and criminally-accused.”

In response,
I sent a letter to Greg which was published in the Jan. 9, 2002
PATNEWS. Below is a lightly edited version.

Letter
to an Anonymous Patent Attorney

PATNEWS Jan.
9, 2002

A PATENT LAWYER
DEFENDS LESSIG

Greg,

The unnamed
corporate patent lawyer bashes Lessig on the grounds of his lack of credentials.
He refers to him as a PPPPP — Pompous Pedagogue Pronouncing Patent
Policies. Let me say that I am an experienced, registered (not “licensed”)
patent attorney, and I, for one, have an even greater opposition
to the patent system than does Mr. Lessig. My reasons can be found
at www.stephankinsella.com/ip.

I do not mean
to make an argument from authority, but to demonstrate that it is
indeed possible to be a patent lawyer, to know a great deal about
the system, and still to oppose it. This corporate patent lawyer
may be right about pompous, unexperienced academics mouthing off
on policy matters. But an ad hominen is no substitute for a critical
analysis of an argument. Either Lessig is right, or he is not, regardless
of his “credentials.” What is the relevance, anyway, of Lessig’s
not having prosecuted a patent before? — does anyone think patent
lawyers, when they prepare, file, and prosecute patent applications,
gain any special insights into the innovations gained by society?
Of course not; patent lawyers prepare patent applications when paid
to do so by their clients. Simple. They don’t get any special insight
into whether this government-granted monopoly is, overall, on the
whole, a good idea. If anything, they are biased in favor of the
system that butters their bread.

In fact, in
my view, most patent lawyers — most lawyers in general — fit into
the category “Pompous Pedagogues Pronouncing Patent Policies”, to
the extent they themselves unthinkingly spout pro-patent slogans.
That is because most patent and IP and even other attorneys with
an opinion on this issue mindlessly parrot the simpleminded economics
with which they were propagandized in law school. Virtually every
patent lawyer will reiterate the mantra that “we need patents to
stimulate innovation,” as if they have given deep and careful thought
to this. Of course, virtually none of them have. They repeat what
they have read in Supreme Court and CAFC (Court of Appeals for the
Federal Circuit, the primary federal appellate court dealing with
patent law issues) opinions as if the positive law enunciated by
government functionaries is some Holy Writ. It does not take a genius
to figure out why most patent lawyers are in favor of the patent
system; and it is not because they have really studied the matter
and dispassionately concluded that society is better off with a
patent system — it is because they don’t want to see the system
that pays the mortgage for them eroded or abolished.

I do not claim
that I have special knowledge as to the legitimacy of patents (pro
or con) just because I am a patent lawyer — but neither should
others. And not being a patent attorney, or an attorney at all,
is no bar to having an informed opinion on the subject (can only
women have an opinion on abortion? Only blacks on affirmative action?).
In fact, IMO lawyers tend have an unjustifiably smug view as to
their comparative advantage at formulating policy values and opinions.
(In fact patent lawyers are less knowledgeable because they
are biased. For example, IRS employees may know more about the tax
system, but is their opinion that the tax system is a good thing
especially persuasive?)

If anything,
the reverse is true: given the brainwashing and special-interest
aligning that most lawyers are subjected to, I’d take the knee-jerk,
“unsophistocated” value judgments of a “layman” any day over those
of the average lawyer. Lawyers are notoriously opinionated on political
and policy matters, yet they fare no better than the laymen in being
able to muster a coherent defense of their own policy views, preferences,
and values. At least laymen do not delude themselves that their
own policy values and preferences are some lofty, authoritative
opinion because interlaced with selected aphorisms from Supreme
Court opinions and politically-correct, mindnumbingly boring and
irrelevant law review articles. Nothing wrong with patent lawyers
doing their jobs, but they should not blindly parrot the mainstream
rhetoric spoonfed to them in law school just to delude themselves
that their profession is some categorical necessity.

Stephan Kinsella
http://www.stephankinsella.com/

Three replies to these comments, by patent
agents or attorneys, were published in the Jan. 16, 2002 PATNEWS.
Below is a lightly edited version of a response I sent to Aharonian
and the patent practitioners:

Kinsella’s
Response to Patent Practitioners

January
23, 2002

Greg,

While I am
open-minded and always willing to consider criticism and new argument/evidence
and admit I am wrong, the quality of the arguments in the three
emails you published on Jan. 16 2002 is so poor that they give
support to my contentions. If critics have to resort to ad hominem,
disingenuity, and outright distortion of my views in order to attack
them, it might be because they are bereft of a substantive argument.
They simply don’t like the idea of abolishing the system,
and that’s it — no argument, so they seek to attack my character,
invoke ad hominem, change the subject, evade the topic — anything
but present an actually clear and coherent, civilized and reasonable
critique or alternative argument.

Excerpts from
the 3 replies to me and my responses thereto follow below:

1. Ed Suominen
(http://eepatents.com/):

> Greg,
>
> I found Mr. Kinsella’s note identifying him as “an experienced,
registered
> (not ‘licensed’) patent attorney” interesting. (I’m not sure
what he means
> by “registered (not “licensed”) — does one term apply and not
the other?)
> Here’s something that might be interesting for you to investigate
and
> report to the group. I did a search [1], but I couldn’t find
Mr. Kinsella
> in the PTO’s roster of registered attorneys and agents, which
is supposedly
> updated through January 7, 2002. Mr. Kinsella’s name did appear
on several
> patents, however, the most recent of which was filed August
26, 1997. Just
> a year later [Winter 1998], Mr. Kinsella published an article
asking
> “Is Intellectual Property Legitimate?” [2] I wonder what happened
in that
> year to change his mind, or did he think IP was illegitimate
when he
> represented clients in securing patents?
> Mr. Kinsella’s PATNEWS missive says that for practicing patent
attorneys
> (and agents, presumably), “money is more important than truth”.
>
> The impression I got from Mr. Kinsella’s writing is that I
am engaged in a
> pointless profession (the same profession he was engaged in
for years), and
> that I should be consumed with regret over the ill-gotten gain
of issued
> patents and pending applications that I have grasped and clutched
as sop
> for my inventions.
>
> Alas, were I not such a greedy capitalist, I might well
> have just given it away, exchanging my hundreds of hours of
self-driven
> effort and sacrifice for the pure satisfaction of bettering
the planet.
> Sorry, but I personally was, and am, driven by the profit motive.
>
> I’m not a
> professor seeking tenure, so publishing the material is not
compensation
> enough on its own. And somehow I don’t see how the world is
entitled to
> the fruits of my labor, just for the asking.
> (I also don’t see how that
> viewpoint is inconsistent with the libertarian philosophy,
which Mr.
> Kinsella espouses [3]. )
>
> Ironically enough, I *am* the author of an open-source software
package
> (still beta). See http://sourceforge.net/projects/tksec. If
land ownership
> can be a metaphor for *intellectual* property, then I consider
open-source
> or public domain to be the equivalent of the land donation
to the county
> parks board — a good thing to do for the community (and I’ve
done it) but
> not something that can be mandated. I choose to hold onto other
parcels of
> my intellectual property, just as I will hold onto the acreage
surrounding
> my home, thank you.
>
> Best regards,
>
> Ed Suominen
> Registered (right now!) Patent Agent (http://eepatents.com/)

In fact, I
am currently registered. The link
Mr. Suominen provided actually does list me (and my employer). The
PTO lists me by my first name, an easy inference to make, especially
since the PTO listing lists my current employer as do my articles
and website. I fail to see
how Suominem didn’t see my name in the short list of Kinsellas.
For his clients’ sake, I hope his prior art searching is better
than his PTO-roster searching.

The proper
term is “registered” not “licensed”. The PTO site itself linked
by Mr. Suominen reads, “Patent Attorneys and Agents Registered to
Practice before the US Patent and Trademark Office…” One is licensed
to practice law, but registered (not “licensed”) to practice before
the PTO.

Contary to
Suominem’s guesses, I still pursue patent protection for clients
(only one, now, since I have gone in-house), “despite” my view that
the federal patent law is unjustifiable. Likewise, I drive on public
roads and attended a tax-funded university even though I also object
to public ownership of roads or tax subsidies to education. If statists
had their way, advocates of liberty would find it impossible to
live in a semi-free world, since nothing they did would be free
of taint. This is ridiculous. Advocating liberty and property rights
does not require one add insult to injury. To suggest so is blaming
the victim.

Suominem is
also incorrect that I view him as “engaged in a pointless profession
… and that I should be consumed with regret over the ill-gotten
gain of issued patents and pending applications that I have grasped
and clutched as sop for my inventions.” That is not at all my view,
nor have I said or even implied so. In my view, there is nothing
immoral or regretful at all about pursuing patents for one’s clients.
The mere fact that a given legal/political institution, practice,
scheme, or law is unjustifiable does not, of itself, imply that
it is immoral for one to utilize and work within this scheme.

I personally
think it is morally obligatory not to advocate or seek to
establish/maintain an immoral government scheme/program, and I think
it is morally obligatory to make an honest, sincere, and thorough
inquiry as to the legitimacy of a given law, before one speaks in
favor of it. But I do not believe practicing patent law is a per
se endorsement of it, and I have no problem with patent lawyers
not taking the time to really look into this matter in a serious
way, so long as they don’t pipe up about it as if they have. I do
not think most patent lawyers have given this serious thought, but
they have been deluded, primarily by the elitism and positivism that law school
instills in them, into thinking they don’t need to. But to their
credit, IMO most patent lawyers don’t have many opinions on this
nor do they go around blathering about it as if they do have an
informed opinion; they accept the system as it is, very pragmatically,
and simply do what they do to earn a living. Simple; and I do not
criticize this.

Also, as a
hard-core libertarian, I would never condemn someone for being greedy
or a capitalist, as is clear from many of my articles available
on my website. I myself am a greedy and ardent pro-capitalist —
in Ayn Rand’s terms, I advocate the virtue of selfishness and am
a radical for capitalism.

Suominem says
he does not see how the view that “the world is [not] entitled to
the fruits of my labor, just for the asking” is inconsistent with
the libertarian philosophy that I espouse. I don’t know how I can
help him here, as my writing makes it clear exactly why I believe
patents are not compatible with libertarian property rights. I’ve
laid out in detail my case for this. If he were to take the time
to read it and come up with an intelligent substantive comment or
critique, okay. Similarly, Suominem says “If land ownership can
be a metaphor for intellectual property…” But this is question-begging
and not even a suggestion of an argument. My writings make it clear
exactly why I and others think tangible property like land is in
fact not analogous to inventions.

As a practicing
IP attorney I will admit that for years I searched for a way to
justify IP laws (unlike most IP attorneys who don’t give a damn),
but eventually realized all the justifications were flawed, and
that IP laws are, in fact, incompatible with property rights. Patent
law limits owners’ use of their tangible property whenever someone
else comes up with certain government-approved techniques/apparatuses.
This infringes property rights. I would be glad to find a good argument
for IP, but unfortunately, none of Suominem’s comments amount to
an argument or even an attempt at such.

2. “Rod”
writes:

> Greg:

>
> Wow. I am a bit disappointed that you gave Mr. Kinsella such
a forum.
[...]

Ah. The typical
reply of the left and those backed into a corner: silence the arguments
of those they do not like. And evade substantive argument (I guess
I would, too, if I had no substantive, non-vacuous views). Yes,
why in the world would the freewheeling, rollicking PATNEWS newsletter
— one that publishes frequent rants by its editor against the ethics
and policies and practices of the patent bar; one that has just
published a critique by a patent lawyer of Lessig’s modest suggestion
to modify patent law? — why indeed, would he print a short letter
from a registered patent lawyer who actually has intelligent, well-formed,
controversial views on this matter? Makes no sense at all, does
it?

I would not
say “any”; and it is not an assumption, it is a conclusion based
on experience and reason.

> Maybe
there are some of us that support the system (however flawed
> in its implementation) for good, well-thought reasons.

Perhaps, but
not many, IMO. Instead of saying “maybe” there are good arguments,
why doesn’t “Rod” offer, or point me to, one? Wouldn’t that be more
direct, quicker, and less evasive/subject-changing?

> Maybe
there are
> some of us (not including Mr. Kinsella, apparently) that work
in the IP
> field because we find it to be useful for society (as well
as profitable).

I of course
work in the IP field to earn a living, there is demand for it. I
daresay this is true of most, if not virtually all, patent lawyers
— the ones I know, would retire in a second if they didn’t need
the money. Consider: how many patent lawyers, rich enough to retire,
would do the job for free, pro bono, just to “help society”? The
answer is very close to zero. Not many of the patent lawyers I know
would be so brazen as to seriously and with a straight face say
that they work in IP because it is “useful for society”. We are
a pragmatic bunch, most of us.

In any event,
there are many economic fallacies in the statement re doing things
“useful to society”. To the extent one is paid for one’s services,
that is indeed an indication of the usefulness of the service (to
the client, at least — I am not sure about “society”). People would
not pay us to prosecute patents if they did not obtain something
of value therefor.

But likewise,
the tax system is immoral, unconstitutional, and just plain stupid.
In a just society there would be no tax laws nor IRS, nor tax attorneys
hired to defend individuals and corporations hounded and persecuted
by government tax collectors. Yet, given a world where the
IRS exists, there is indeed a market for tax lawyers, and they do
indeed perform a valuable service. I oppose the patent system but
would not feel pangs of guilt were I a tax attorney, on the grounds
that I am just wasting my life in a job that “should not exist”.
I would instead take pleasure in earning money in exchange for performing
a service useful to my clients.

Doctors also
perform a valuable service, although it would be better (I suppose)
if there were no disease in the world. Are doctors supposed to regret
having to fight disease and sickness, because it is just
such a shame that there has to be disease and death? And
so on. But a tax attorney arguing in favor of the tax code, is not
very persuasive to me. At the least, his arguments are not more
credible, and I would say his motivations and sincerity are suspect.

>Mr. Kinsella
also accuses IP lawyers of being hypocritical for supporting
>the IP system. It would seem to me that Mr. Kinsella is the
hypocritical
>one, working all day, every day, in a field that he believes
to be
>counterproductive to society. What a sad life he must lead.

I don’t accuse
them of hypocrisy at all for practicing patent law or even for suporting
IP per se. I simply think they are disingenuous and insincere in
promulgating obviously-weak pro-patent arguments, all the while
pretending to have some special authority and to be disinterested.
But notice Rod’s evasion of addressing the substantive issue under
discussion.

I do not say
the “field” is “counterproductive to society”. I say that laws using
force of the state to prevent me from using my property as I see
fit, just because someone else came up with a way of doing something
with his property, are not justified. If Rod thinks he can
justify such laws, which are tantamount to partial forcible expropriation
of private property by the state, I welcome him to do so. But to
change the subject for focusing on character etc. is easier, I suppose,
than having a substantive discussion, at least when one has no good
arguments to draw upon.

As for the
“sad life” comment, I have no comment for such uncivil discourse
or disingenous, dishonest argumentation.

This is just
wrong, and laughably, blatantly so. Libertarians, qua libertarians,
believe in individual rights (an objective truth, by the way); and
many, including me, do in fact hold objective and absolute, universal
and non-relative, moral and other views. Many libertarians, for
example, are Objectivists (link2) (adherents of Ayn Rand’s
philosophy). Of course they believe in objective truth. Unlike an
empiricist-positivist like Milton Friedman, I do not ground my defense
of rights and liberty on skepticism (the idea that we cannot know
what the “best” way to live life is, and “therefore” we should nor
impose lifestyles by force on people). I simply believe that even
if we can know some things are objectively immoral, it still does
not justify the use of force against the immoral action, unless
that immoral action itself involves force.

> Sorry
to dump on him, but he really attacks IP attorneys, and concludes

> that anyone who doesn’t agree with him is dishonest and a toady.

Again, note
how the author here, instead of proposing — or even pointing to
— a good substantive defense of patent law, takes umbrage at my
pointing out that members of the patent bar might be biased in favor
of the patent system! I would bet that a greater-than-average percentage
of postal employees oppose the privatization of the post office,
and a greater-than-average percentage of public school teachers
oppose abolishing redistribution of wealth from taxpayers to public
schools. I wonder why.

But I could
be wrong. Maybe every pro-patent patent lawyer is sincere. Still,
the arguments they put forth are lacking in substance and rigor
— such as the anonymous ad hominem one attacking Lessig for not
having the right credentials, instead of actually mounting a serious
substantive case.

3. Stan Protigal
(http://elman.com/) writes:

> There’s
more to this guy than meets the eye.

You mean I
am not “just” a patent lawyer?! Gasp! What an outrage!

> He has
published articles
> advocating, inter alia, sending all of the Jews in Israel to
Federal
> reservation land. He suggests either in the desert along the
border of Utah
> and Nevada (atomic test site or just Bryce Park?) or to the
upper Arctic
> reaches of Alaska. (What about the sea? – oh that idea’s
already taken.)
> http://archive.lewrockwell.com/orig/kinsella5.html

> [...]

So here we
have it; if one cannot attack an argument on substantive grounds,
subtly accuse its author of anti-semitism. I never advocated “sending”
Jews to reservations. Instead, I advocated (generously, IMO) offering
them some of our unused public lands, and of eliminating taxpayer
subsidies to Israel (and Egypt and the rest). The article he links
above notes that the Israelis themselves at one point considered
Uganda and other places as a possible home for Israel.

> Perhaps
his positions on patents are more closely tied in with his politics

> in general than anything relating to the patent system.

I am not clear
how this is supposed to be a criticism — Why, yes, my views on the
legitimacy of patent laws happen to be “tied in” with my general
political views. Heaven forbid we have a systematic political philosophy
with implications for which laws are good and bad! Heaven forbid
someone has a serious and thought-out system of views on the proper
nature and role of government, individual rights, and law, and applies
it to various areas of interest, like IP law, and comes to actual
conclusions that differ with those of most of his fellow patent
lawyers. After all, we can’t have anyone pointing out that the emperor
has no clothes.

Interestingly,
I received several emails from other recipients of PATNEWS commenting
on my letter, ranging from merely interested to very supportive,
and none of them negative or hostile. Maybe there’s hope after all.

FURTHER
READING

For theoretical
and other analyses, see my articles, and others linked at: www.stephankinsella.com/ip

APPENDICES

Replies
to Kinsella’s Comments re Aharonian/Lessig

PATNEWS
Jan. 16, 2002

CRITIQUES
OF LAWYER WHO DEFENDED LESSIG IN RECENT PATNEWS

Recently I
sent out a defense of Prof. Lessig by a patent lawyer from a charge
of qualification-lack made by another patent lawyer, in the context
of my critique of Lessig’s patent commentary in his new book. The
saga continues with a few critiques of Lessig’s defender.

Greg,

I found Mr.
Kinsella’s note identifying him as “an experienced, registered (not
‘licensed’) patent attorney” interesting. (I’m not sure what he
means by “registered (not “licensed”) — does one term apply and
not the other?) Here’s something that might be interesting for you
to investigate and report to the group. I did a search [1], but
I couldn’t find Mr. Kinsella in the PTO’s roster of registered attorneys
and agents, which is supposedly updated through January 7, 2002.
Mr. Kinsella’s name did appear on several patents, however, the
most recent of which was filed August 26, 1997. Just a year later
[Winter 1998], Mr. Kinsella published an article asking “Is Intellectual
Property Legitimate?” [2] I wonder what happened in that year to
change his mind, or did he think IP was illegitimate when he represented
clients in securing patents?

Mr. Kinsella’s
PATNEWS missive says that for practicing patent attorneys (and agents,
presumably), “money is more important than truth”. Was it so for
him in 1997 and before? Was he (quoting him again) choosing to “simply
go along to get along” then, “know[ing] where the bread is buttered”?

The impression
I got from Mr. Kinsella’s writing is that I am engaged in a pointless
profession (the same profession he was engaged in for years), and
that I should be consumed with regret over the ill-gotten gain of
issued patents and pending applications that I have grasped and
clutched as sop for my inventions. Alas, were I not such a greedy
capitalist, I might well have just given it away, exchanging my
hundreds of hours of self-driven effort and sacrifice for the pure
satisfaction of bettering the planet. Sorry, but I personally was,
and am, driven by the profit motive. I’m not a professor seeking
tenure, so publishing the material is not compensation enough on
its own. And somehow I don’t see how the world is entitled to the
fruits of my labor, just for the asking. (I also don’t see how that
viewpoint is inconsistent with the libertarian philosophy, which
Mr. Kinsella espouses [3]. )

Ironically
enough, I *am* the author of an open-source software package (still
beta). See http://sourceforge.net/projects/tksec. If land ownership
can be a metaphor for *intellectual* property, then I consider open-source
or public domain to be the equivalent of the land donation to the
county parks board — a good thing to do for the community (and I’ve
done it) but not something that can be mandated. I choose to hold
onto other parcels of my intellectual property, just as I will hold
onto the acreage surrounding my home, thank you.

Best regards,

Ed Suominen

Registered
(right now!) Patent Agent (http://eepatents.com/)
Independent Inventor of Electrical Engineering Technology
U.S. Patents 5,926,513; 5,937,341*; 6,052,748*;
6,069,913; additional patents pending* (*Available for licensing:
DSP,
speech & handwriting recognition, cryptography & RF receiver
technology)

[1] See http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Stephan&max=1000
and http://www.uspto.gov/cgi-bin/attorney/atty.cgi?Kinsella&max=1000.
Also, I did a dtSearch of the entire 7MB+ text file (date stamped
1/7/2002) of the Roster with the query “kins* w/20 ste*”. It revealed
only an entry for “”Peterson”,”Paul” of “10845 Kinsman Road” next
to an entry for “Peterson”,”Stephen”

[2] http://www.stephankinsella.com/publications.php#IP

[3] http://www.stephankinsella.com/publications/bio2.php

>From rod@all-ip.com
Wed Jan 9 14:50:37 2002

Greg:

Wow. I am a
bit disappointed that you gave Mr. Kinsella such a forum. OTOH,
you did give me the chance to check out his views, and maybe you
just published his note just out of fairness. In that way, thanks.

(Greg
note: for the most part the policy of PATNEWS is laziness. If you
send me something with attitude that I don’t have to type in or
edit much, I probably will send it out.

Mr. Kinsella
also accuses IP lawyers of being hypocritical for supporting the
IP system. It would seem to me that Mr. Kinsella is the hypocritical
one, working all day, every day, in a field that he believes to
be counterproductive to society. What a sad life he must lead.

Sorry to dump
on him, but he really attacks IP attorneys, and concludes that anyone
who doesn’t agree with him is dishonest and a toady. Hardly the
“truth”, don’t you think?

Rod

>From protigal@elman.com Thu Jan 10
09:16:23 2002

Hi Greg –

There’s more
to this guy than meets the eye. He has published articles advocating,
inter alia, sending all of the Jews in Israel to Federal reservation
land. He suggests either in the desert along the border of Utah
and Nevada (atomic test site or just Bryce Park?) or to the upper
Arctic reaches of Alaska. (What about the sea? – oh that idea’s
already taken.) http://archive.lewrockwell.com/orig/kinsella5.html

His theory,
as nearly as I can determine, is that this is necessary to appease
UBL.

Perhaps his
positions on patents are more closely tied in with his politics
in general than anything relating to the patent system.

— Stan

Replies
to Greg Aharonian’s Comments on Lessig

PATNEWS
Jan. 7, 2002

In a recent
PATNEWS, I critiqued Prof. Lawrence Lessig’s new book on intellectual
property law and the “content” industry, title “The Future of Ideas”.
Of the 268 pages in the book, I focused on the ten or so dealing
with patents, which I thought were not well written and contributed
little to his book. And still think so. The book would suffer nothing
from removing these pages, especially given their tone of MAYBE
there is data to show that MAYBE patents MAYBE causing some problems
for “content” any different than other industries routinely deal
with. Too many MAYBEs.

What follows
is some comments on my critique from PATNEWS readers, followed by
Lessig’s critique of my critique (along with some critiques of mine
about Lessig’s critiques – I get the last word since as people
seem to forget, this is MY newsletter).

Greg Aharonian
Internet Patent News Service

(From a Washington
DC patent lawyer)

Greg:

Interesting
critique of Lessig.

Here’s one
additional perspective that I find interesting. The patent systems
in many Asian and South American countries are weak to non-existent.
Indeed, in some of these countries patent protection is forbidden
for certain technologies of significant public importance (e.g.,
medicine). Under Lessig’s model these patent-free countries would
become high-tech Mecca’s, in which entrepreneurs would be free to
innovate without serious threat of legal impediment.

Yet the reality
is that, by and large, the most significant technological innovations
continue to originate in precisely those countries having the strongest
patent systems.

(From
a corporate patent lawyer)

Thanks for
this critical review Greg. You can add this:

I would suspect
that Stanford Law Professor Lawrence Lessig and his ilk will be
typical of the PPPPP* patent-bashing witnesses the FTC will trot
out in its upcoming public hearing. i.e., academics who are not
even licensed to practice patent law, never even having passed the
PTO patent bar examination (I just checked the PTO attorney roster
list on the PTO web site), never having worked in or with the PTO,
and probably never even having written, prosecuted or litigated
a patent in their life.

*Pompous Pedagogues
Pronouncing Patent Policies

(Greg note:
I am sure this PATNEWS reader, if he wants to keep his subscription,
is not putting PATNEWS in the PPPPP category

(From an actual
professor of patent law)

Greg,

Thanks for
pointing out the Lessig book is ill-informed and ill-thought through
(a problem I have with most young academics who decide, based on
NO actual experience in the subject) that they can make patent law
their subject. I have often likened their writings to people discussing
life beyond the solar system: “we can all speculate equally well
because nobody really knows” seems to be their drift. But of course,
people DO know about patent law. Often a simple phone call would
have keep them from looking so foolish. The fact that they write
for law reviews, where students with even less knowledege than the
authors are their editors, just makes it all worse.

(From a government/private
patent lawyer)

Greg,

Some interesting
background information about IP economics.

In 1996, for
a presentation to a Smithsonian Associates – Johns Hopkins
U. course on Invention and Innovation, I looked into historical
evidence on the economics of patents. It turned out to be all hand-waving.
There wasn’t a single reliable source that I could find. The standard
reference (Jewkes, Sawers, Stillerman) was completely unpersuasive.
There was a paper in Science ca. 1980 that claimed to find a greater
monetary return to society than to the patentee. Unfortunately the
study required that the inventions and patents they investigated
not be revealed, so there was no way to check their data.

>… (Lessig
should take a look at
> some of the recent papers by Mark Lemley at UCal Berkeley’s
law school,
> which do present numerical data on IP practices.)

Your critique
of Lessig is right on. The trouble is he knows nothing of patent
law, like most (but not all) law professors. It’s only recently
that law schools have been hiring registered practitioners like
Lemley.

If I don’t
lapse into senility sooner, I want to look into the intersection
of the history of technology and patent law. But I’m afraid that
there’s too little good data out there, and what there is is widely
scattered. We need more research projects like the Thomas Edison
papers, especially since there’s a lot of faulty stuff out there
that purports to be historical. Jim Carmichael, then an Administrative
Patent Judge and now in private practice, published a reminiscence
about Edison and his patents in the ABA IPL Newsletter ca. 1997.
I think he got it from Judge Rich, who may have found it in his
father’s papers. I put Jim in touch with the then-editor of the
Edison papers, who could show that the reminiscence was almost totally
without foundation in fact. Unfortunately it appeared in print before
any corrections could be made.

(From a Silicon
Valley patent lawyer)

Right on Greg
!!! Instead of attacking patents you are finally defending the system
(to some extent). (Greg note: PLEASE PEOPLE, I fully support the
statutory basis of the patent system, even more so than everyone
in the patent world (a future surprise). But until my dying days,
I will attack the quality of issued patents and case law, both in
deep trouble).

Prof. Lessig
probably does not get the telephone calls I get in my practice.
We routinely get calls from solo inventors who think they have a
great idea but they are afraid to approach VC’s and/or major companies
for development support out of fear that the strangers will steal
the idea and the inventor will get nothing. Maybe I should route
some of these calls to the Professor to see how he replies. What
will he say to these people: Don’t think about patents? Give away
your workproduct for free? Asking for compensation is un-American
— it stifles innovation?

Unfortunately
for small inventors, the patent system does not offer a one-stop-shopping
solution. Lawyers are expensive. Do-it-yourself is fraught with
pit falls. Nonetheless it is better to have some patent system than
none at all. Perhaps the Prof should instead argue that government
should be supplying freebie patent agents for the poor, just like
it supplies public defenders for the indigent and criminally-accused.
If we truly want to promote the arts and useful sciences, then where
are our deeds beyond just the mere words of encouragement?

(From a corporate
patent lawyer)

Good critique
Greg. I was struck by how often things were “obvious” to Lessig
that are not obvious to anyone actually working in the field.

As for the
anticommons, a far better argument can be made that it affects bio-tech
patents than software patents. Mere conjecture that software patents
may be subject to such, and thus we need to change the system is
patently absurd.

Before he can
really talk about the anticommons, someone (maybe Prof. Lemley again)
would need to actually look at patent licensing practices in the
industry. I suspect that what would be found is that a lot of patents
are being awarded to companies already involved in cross-licensing,
and that many of the rest are narrow enough not to cause much in
problems – but again, just a guess.

(From a patent
lawyer)

Greg,

Unless there
has been a fundamental change in human nature during the last 200
years, I vote with Thomas Jefferson..

“The
issue of patents for new discoveries has given a spring to invention
beyond my conception,” Thomas Jefferson.

“Everyone
loves a treasure hunt,” Paul Hentzel.

“Several
of al-Jazari’s (a 12th century Islamic mechanical engineer) machines
have been reconstructed by modern craftsmen working from his specifications,
which provided far more detail than was customary in the days before
patent law was invented . . . . Such openness has rarely been encountered
until recent times.” “Mechanical Engineering in the Medieval Near
East”, Donald R. Hill, Scientific American, vol. 264, no. 5, May
1991, p. 104

>From lessig@pobox.com
Mon Dec 17 14:47:49 2001
Date: Mon, 17 Dec 2001 12:48:21 -0800
Subject: PATNEWS: Critique of Lessig’s “Future of Ideas”
From: Lawrence Lessig

Greg:

Thanks for
the attention to my book. I’m only sorry I did such an apparently
awful job in conveying what is, I believe, the least controversial
claims in my book.

(Greg
note: well if I got confused, imagine how confused those in the
general public will be, since your book is not for legal professionals.)

My aim with
respect to patents was to do things: (1) to establish the strong
and bipartisan pedigree for the claim that patents are a different
sort of “property”; (2) to establish the uncontroversial claim that
while we can see the costs of a patent system, we have no good evidence
that the benefits of the system outweigh those costs. Nothing in
your animated response actually responds to either claim.

(Greg
note: I was responding to specific comments, not your overall thesis,
which you admit, was not conveyed well. And I question your focus
on economics, given the generalal lack of any economic data in the
book. Here is one, for example – whatever the costs of the
patent system, it has given the US the benefit of being the leading
economic power in the world. Causal or not, it least it is economic.)

You rightly
note that Franklin, Jefferson, and Hayek can’t tell us much about
whether software patents do any good. True enough: they were offered
for claim (1), not claim (2). And you rightly note that we have
no good data that the patent system has harmed innovation. Again,
true enough: but it is a mistake of logic to equate my assertion
“that we have no good evidence that on balance the system does good”
with the claim “that we have good evidence that the system is doing
harm.” The former obviously does not entail the latter.

(Greg
note: then unless you are being inflammatory, you should have written
“that we have no good evidence that on balance the system does good
or bad” which is probably the statistical thing to do.)

The difference
between us — as you know from a relatively extensive exchange in
email and in public — is that I believe the government should have
some evidence of the good that its regulation will do *before* it
regulates; you believe those who attack the regulation should prove
the harm in a regulation before the regulation is stopped. This
is a difference in baselines, which it might well be good for people
to debate. I’m happy to confess the lurking Republican bias in my
argument against the “regulate first, justify later” school of government.
But that bias is not at all addressed by your lengthy critique below.

(Greg
note: but software and business method patents are not new regulations,
but the logical extension of an existing regulation. So I ignore
the bias, especially because the paymasters of the Republican party,
other than the cretins, are corporate America which fully supports
the currently broad-scoped patent system.)

Instead, you
seem to believe that the existing system is sufficiently justified
either because (1) the harm from these patents is no worse than
the harm from other patents, or (2) the equal protection clause
somehow requires we be as stupid with respect to these patents as
we may have been with respect to other patents. With respect to
(1), I’d just note that now it is you who are making an affirmative
argument about what the data show, and to quote you back to you:
“WHERE’S THE DATA?”.

(Greg
note: Where’s my data??? Grow up. My newsletter isn’t being written
by a prestigious Stanford law professor being funded by a publisher
to write a book to the level of standards expected of Stanford students,
let alone their professors. By the way, I do have data, and better
legal arguments, for a book I will be self-publishing, and unlike
you, I will be asking you to review it.)

And with respect
to (2), I can assure you, there is no requirement under the equal
protection clause that the government subsidize anyone. Does Ford
have an equal protection claim because it didn’t get the bailout
that Chrysler got? Do unemployed airline workers have an equal protection
claim because they didn’t get the 911 benefits that airlines did?
Obviously (I hope) in both cases the answer is no, and neither with
patents. Patents are a form of government subsidy; the decision
not to extend that subsidy to any particular field of invention
does not raise any constitutional claim.

(Greg
note: policy decided by the CAFC to fully allow patenting of software
and business methods, your focus in the book, was not based on subsidy
theory, but rather the inherent patentability of such technologies.)

Finally, I
completely agree with you that those who have a vested interest
in the existing system — either the good or the bad of the existing
system — don’t have much interest in changing it. But I do not agree
that the Patent Office is incapable of an effective study of whether
their regulations do any good. I know you like to cast all this
in terms of good versus evil, hardworking versus “lazy.” I don’t
think that is a very helpful way to proceed. If Congress charged
the office with the task, and gave them adequate resources to execute
it, I’m quite confident they would do as well or better than practitioners
whose livelihood depends upon the system staying much as it is.

(Greg
note: the PTO does not have enough economists and access to enough
data, nor the independence, to do such a study. Heck, we can’t get
Congress to fund a study of the patheticness of Rule 56, and its
big impact on patent quality and industry economics. And given the
PTO’s continual refusal to make available and publish convenient
data on prior art associated with patents, you want them to oversee
an orders larger study of the entire patent system?)

Lessig
Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610

Greg
Aharonian’s Comments on Lessig

PATNEWS
Dec. 16, 2001

!20011215 Critique
of Lessig’s “Future of Ideas”

While I will
be critiquing the entire book in a future PATNEWS, with this PATNEWS
I will focus on his commentary on patents, basically those ten pages
from 205-215.

====================

“But
now I want to describe a second form of protectionism – perhaps
more threatening to the promise of the Internet’s future. This threat
too is the product of state intervention into Internet space. And
this intervention is even harder to justify. … The issue here
is patent law.”

“Threatening”
– I hope we will be seeing some strong, assertive data. Dashed
hopes instead.

“But
here, economists have an important qualification: If we don’t know
which direction an improvement is likely to take, then licensing
may not occur, and patents here may actually do harm.”
^^^ ^^^

MAY and MAY.
But where’s the data? He cites a few economists’ comments on the
effects of patents, but economists’ models have mostly been too
simplistic and/or too unconclusive. He offers no data of his own.
Such a combative book with no new data, and little old data. Next
he uses the biblical-authority argument:

“This
skepticism has been with us from the start of the patent system.
Ben Franklin thought patents immoral. … The first patent commissioner
himself – Thomas Jefferson – was also extremely skeptical
about these forms of monopoly.”

Look, these
were great men, but Franklin that it was moral to deny woman the
right to vote, and Jefferson thought it moral to own slaves and
to deny African Americans the right to vote. Such historical ancedotes
have little relevance in a IP discussion 250 years of science and
technology developments later. So Franklin and Jefferson voted unskeptically
to deny women the right to vote but voted skeptically to have a
patent system.

Another quote
is a good example of some of the misleading information included
in the book:

“But
in the past twenty years, an important shift has occurred. The limits
to the reach of patent law have been eroded by a number of expansions
in patent law doctrine. “These changes”, Adam Jaffe [an economist]
writes, “were not brought about primarily by Congressional action,
but rather by the … Patent Office.”

Now Lessig
(and Jaffe) knows that the Patent Office does not establish patent
law doctrine, but rather only implements patent law doctrine. Patent
law doctrine is for the most part established by the Court of Appeals
of the Federal Circuit (CAFC), with the occasional higher involvement
of the Supreme Court. In fact, the patent doctrine expansion most
tourbling to Lessig, software patenting, was actually resisted by
the Patent Office for (way too) many years. Chakrabarty (organisms),
Lowry (data structures), State Street (business methods), Pioneer
(seeds) – these are all expansions of patent law decided by
the CAFC and the Supreme Court. This quote does not belong in the
book.

Next he is
inaccurate with the history of software IP.

“Before
the 1980s, software inventions in the United States were not subject
to patent protection. The reasons were tied to the nature of programming
(programs were considered algorithms, and algorithms were traditionally
not protected).

Wrong. In the
1960s, software was used by hardware vendors to sell their hardware,
led and dominated by IBM. They didn’t want software patents getting
in the way, and wrote such business goals into a Presidential Commission
report that found its way into a 1972 Supreme Court decision, Gottschalk
v. Benson. This decision and its ill-begotten spawn (CONTU), the
reason why algorithms were thought not to be patentable, was a decision
repeatedly criticized in the years to follow, a decision which took
20 years of CAFC decisions to render obsolete.

A bit later,
he contradicts the earlier Jaffe quote:

“In
1998, however, the United States Court of Appeals for the Federal
Circuit put this idea to rest. The patent law reached business processes
just as any other, and patents for business methods, were, the court
held, not invalid because of the subject matter.”

Right. The
CAFC establishes doctrine, not the PTO as the economist Jaffe asserted.

He then provides
misleading information at a crucial point in his attack on patents:

“While
it is clear that patents spur innovations in many important fields,
it is also clear that for some fields of innovation, patents may
do more harm than good. {90}”

Once again,
a MAYBE, because he has no data of his own. Footnote 90, which he
bases his assertion on the harm of some patents, is a reference
to a paper by James Bessen and Eric Maskin titled “Sequential Innovation,
Patents and Imitation”, which using highly artificial and simplistic
economic models concludes that under some conditions patents maybe
bad. He also quotes a book, Patently Absurd, “[T]he rush to acquire
patent portfolios could slow down the generation of new ideas.”.
MAY, MAYBE, COULD – truly wimpy assertions with little real
world data.

He then inadvertently
proposes an idea for a serious book on this subject:

“My
claim is not that these transaction costs are so high as to make
patents unadvisable in the Internet context. My point is simply
that these considerations, supported as they have been {96}, at
least raise a question.”

Footnote 96,
his support for this assertion, once again is the paper of Bessen
and Maskin. Attacking patents based on Bessen/Maskin is like shooting
rubber bands at an elephant.

But he is right,
this is an interesting question. So let’s collect some real data,
not write these MAYBE books. (Lessig should take a look at some
of the recent papers by Mark Lemley at UCal Berkeley’s law school,
which do present numerical data on IP practices.) But I doubt a
book on the patent impact on the Internet will be funded because
the data will show that the impact of patents on Internet/software
has been no different than the impacts of patents on other fields
of technology (maybe even milder, biotech has bigger patent woes),
and that the impact of patents on business, good and bad, is generally
handled by and accepted by most industries. Problems, especially
low patent quality and high litigation costs, sure. But those are
logistic problems, not legal problems.

He then once
again forgets who establishes patent policy, citing one of the more
rather clueless commentators on intellectual property laws:

“Publisher
and Net guru Tim O’Reilly was on the same panel. He had a quick
and devastating response. The head of the USPTO, O’Reilly said,
has two roles in the administration. One is, as Dickinson had just
said, to run the office. But the other is to advise the administration
about what policy made sense. And where, O’Reilly asked, following
up on my own question, was the policy analysis that justified this
extraordinary change in regulation?”

Devastating?
I think not. Sure, the PTO offers advice to Congress and to the
Administration. And to the courts, which is where the types of policy
changes Lessig cares about are actually established. But Congress
has pretty much let the courts’ analysis set patent policy, because
that’s what the large companies that dominate intellectual property
want, and Congress obeys.

He then cites
some more history:

Another bit
of laziness:

“But we will
never know whether or not it [patent system] does any good if we
accept this never-ending expansion without limit. We will never
know what benefit this regulation provides until we begin to demand
that the regulation prove itself. For the harms from this regulation
are not hard to identify, and for the cynical, or conspiratorial,
the harms are not surprising.”

How can we
never know about something that is not hard to identify? SHOW ME
THE DATA. Here is one good of the patent system – it helps
some startups raise money.

“The harms
are even more pronounced, however, for open code projects.”

SHOW ME THE
DATA. Open code is more plagued by being based on faulty business
models and the open coder’s lack of education about intellectual
property, than threats from patents.

“As Richard
Stallman writes, ‘The worst threat we face comes from software patents,
which can put … features off-limits to free software for up to
twenty years.’”

“The reasons
patents harm open code in particular is not hard to see.”

SHOW ME THE
DATA. In fact, one of the few data points of actually harm and financial
loss is, …….., Greg Aharonian. My lawsuit is based on my Web
site’s use of open source software (I use the Apache server). Most
other harm is that found in every other industry with patents.

He then points
out a problem I agree with, but again this is a logistic problems
solved by toughening up implementation of Section 112:

“The problem
is exacerbated with software patents because though the patent system
was designed to induce inventors to reveal their invention to the
public, there is no obligation that a software inventor reveal his
source code to get a patent.”

I agree completely.
Much like the biotech patents, Section 112 dealing with enablement
is a big problem with software patents, right after 102 lack of
novelty and 103 lack of non-obviousness. Every software patent application
should include a diskette with the source code on it (no silly best
mode objections, please), just like the gene sequence people have
to submit their gene sequences. And the PTO should make available
an online database of these source codes. Think of it – an
online database of over 100,000 computer programs in source code
form – it would dwarf everything similar on the Internet, such
as freshmeat.

Next, a comment
that no IP academic really gives a damn about:

“And
then there is the expense of patents, which is borne more sharply
by smaller inventors than larger.”

I have yet
to see an academic law journal article seriously explore the costs
of small inventors acquiring and defending patents. Isn’t there
at least one activist law school to do a better version of PATNEWS?

Next, another
“harm”:

“Finally
there is the obvious hold-up problem – where an innovator is
about to release a product and is discovered to be violating a patent.
…. As [Berkeley economist Carl] Shapiro concludes: ‘[T]his hold-up
problem is very real today, and … should [be considered] a problem
of first-order significance in the years ahead.]

This is a problem
that affects all industries, not just software, so it is not a problem
that can be used to attack software patents. And if we can improve
the quality of issued patents (another issue of no interest to academic
law journal articles), the problems of hold-up are lessened.

He then wanders
into the economics of commons:

“Nobel
Prize-winning economist James Buchanan has expanded this idea to
the problem of regulation generally. He points to the problem of
patents in particular as an example where multiple and overlapping
patent protection may create an anticommons, where innovators are
afraid to innovate in a field because too many people have the right
to veto the use of a particular resource or idea. This potential
for strategic behavior by these many rights holders makes it irrational
for an innovator to develop a particular idea, just as the possibility
of veto by many bureaucrats may leave a particular piece of real
property underdeveloped.”

MAY. POTENTIAL.
POSSIBILITY. Again, SHOW ME THE DATA of harm. And if you do collect
the data, I suspect it will show that the anti-commons problem for
software patents, assuming it exists, is no different and probably
milder, than other areas of technology such as biotech and integrated
circuits.

He concludes
his patent commentary:

“The
complexity in these rights to exclude creates this anticommons problem.
And the more severe the problem, the more it will stifle new innovation.”

MAYBE. But
where is the empirical data showing real stifling effects on the
software industry because of patents, especially data that shows
the effects are substantially worse than the impact of patents on
other fields of technology? Are too many bad software patents issuing?
Sure. Can we economically decrease the number of bad software patents
issuing? Just as sure.

The
urgency [for reform] in the field of patents is even greater. Here
again, patents are not evil per se; they are evil only if they do
no social good. They do no social good if they benefit certain companies
at the expense of innovation generally. And as many have argued
convincingly, that’s just what many patents today do.

A few sentences
later:

In
particular, [the PTO] should be required to perform an economic
study to justify the most controversial extensions of patents right
now – business method and software patents. If these forms
of innovation regulation can’t at least meet the burden of demonstrating
that they are more likely to aid innovation than harm it, then Congress
should withdraw this form of monopoly protection.

Never say that
Lessig doesn’t have a sense of humor – these two sentences
are hilarious. First, after lambasting the PTO for being unfair
he calls for the PTO to do a fair study that conceivably could not
be in the bests interests of the mandarins that run the PTO. It’s
like the NRC being asked to do a critical study of the nuclear power
industry (hahahaha). Second, no other technology has been asked
to demonstrate that their patents aid innovation more than harm
– why should software and business methods technologists be
asked to do so? Seems to me violate some equal protection aspect
of federal laws that Lessig champions.

His last comment
on patents?

In
the meantime, there are smaller changes that Congress might make,
all designed to lessen the harm patents generally, and bad patents
in particular, might cause.

Yea, like what?
He couldn’t have devoted one more page out of 261 to mention a few
of these smaller changes. I hear Lessig is going to lead a campaign
of patent law academics to call upon all patent prosecutors to charge
their clients less money so that their clients can have more money
to do prior art searches (or pay higher fees to the PTO to have
them do better searches), as well as demanding that Rule 56 be greatly
toughened, and that the Jepson format be mandatory. (YES, this last
sentence is dripping sarcasm).

Greg Aharonian
Internet Patent News Service

January
25, 2002

Stephan
Kinsella [send him mail]
practices patent law in Houston. His website is www.stephankinsella.com.

LRC
needs your support. Please donate.

So.
The terrorists are completely responsible for their unjustifiable,
murderous actions. Nevertheless, it can still be pointed out that
American foreign policy is a significant cause of the anti-American
hatred which generates terrorism. It is implausible that we are
attacked merely because we are “democratic” and they “hate
our freedoms,” as
George Bush and others,
such as neocons and
Objectivists, imply. It
is beyond cavil that they hate us, at least in part, because we
hurt their fellow Muslims (e.g. civilians in Iraq) and aid their
hated enemy, Israel. The enemy of my friend, the friend of my enemy,
and all that.

Therefore,
in addition to hunting down and extirpating those responsible for
the recent attacks, we ought to re-examine our foreign policy. As

Justin Raimondo writes,
citing George Washington’s
Farewell Speech, “Our foreign
policy should consist of the following principle, one handed down
to us by the Founders: entangling alliances with none, free trade
with all. It is a foreign policy that puts America first — not Israel,
not Kosovo, not Taiwan, not ‘human rights,’ nor ‘democracy,’ but
America’s interests, narrowly conceived.” Therefore, we ought to
bring the troops home and stop sending billions of dollars a year
to prop up regimes such as Israel and Egypt. Calling some of the
troops home would, if nothing else, help save money. And if we had
a less meddlesome, more properly limited foreign policy, there might
well be less hatred of America and thus fewer terrorist attacks
on us. We might not eliminate terrorism, but even reducing its level
and frequency would save lives.

As
noted above, our support for Israel seems to be one reason that
so many Arabs hate us. As Norman Podhoretz
reluctantly acknowledges,
“To be sure, one of the great ‘crimes’ of America in Arab eyes remains
its support of Israel.” And Jacob Weisberg
begrudgingly admits that
for Osama Bin Laden, “the existence of Israel, and of Jews, is a
significant irritant,” and that “[o]ur abandonment of Israel might
diminish one of Bin Laden’s sources of suicidal recruits.”

So.
Under a proper foreign policy we would not be militarily and financially
supporting regimes abroad, including Israel and others in the Middle
East. This could also be expected to reduce Arab/Muslim hatred of
America.

But
obviously, it is not politically acceptable for America to completely
abandon Israel. Accordingly, I have another proposal: relocate Israel
to America.

Yes,
I’m serious. Consider: the Bureau of Land Management (BLM) currently

administers 264 million acres of public lands
— about one-eighth of the land in the United States. Most of these
lands are located in the western United States, including Alaska,
and include extensive grasslands, forests, high mountains, arctic
tundra, and deserts. The federal government has no business owning
millions of acres of public lands. These resources should be put
into private hands, not hoarded by government.

Combine
these insights — we should not be involved in the middle East; the
feds have no business owning public forests — with the political
reality that we cannot simply abandon Israel and allow it to be
overwhelmed by hostile Arabs, and an obvious solution presents itself:
offer to Israeli Jews a new homeland, carved out of BLM-administered
public lands.

There
is plenty room to do it. Israel has an area of only about
5 million acres (7800 square
miles), just slightly smaller than New Jersey. Its population includes
about 5
million Jews
(about the same as the number of Jews already in America). Israel’s
area is less than 2% of the public land controlled by the BLM. Perhaps
even a smaller area would suffice, say 2 or 3 million acres. Sufficient
space could no doubt be carved out of the public land in any number
of states — Alaska, Nevada, Wyoming, or Utah, for example. Or, as
suggested in the “New Israel” map above, between Nevada and Utah
Utah (yellow on the map denotes BLM-administered public land; the
red patch indicates a possible location for New Israel). Or, heck,
put New Israel up in Alaska’s 19-million-acre Arctic National Wildlife
Refuge (“Anwar”), and lease the oil exploration and production rights
to them. The (New) Israelis an oil power — how’s that for turnabout!

I
propose, therefore, that we dedicate sufficient BLM land to form
New Israel, and grant it special status as an independent territory.
After a sufficient number of Israelis (and perhaps some American
Jews) moved there, America could recognize it as a sovereign state.
New Israel could either be a successor state to treaty and related
obligations of Israel, or it could be a new state altogether, if
some remnant of Old Israel survived. A treaty between the U.S. and
New Israel should guarantee free trade. And New Israel’s status
as an independent state would prevent New Israelis from becoming
American citizens, which is important because Israelis are socialistic,
at least by libertarian standards.

After
selecting a location and dedicating it to this purpose, the U.S.
government would announce that it is withdrawing all support for
Israel within, say, five to ten years (or sooner, if possible).
That would give Israelis sufficient time to relocate. We could save
$3 billion a year currently sent to Israel or, if politically necessary,
use some or all that amount for some time, to help fund the relocation
and to provide seed money to New Israeli businesses and homeowners.
(Private alternatives would of course be preferable.) Some Israelis
might move; others might stubbornly refuse the offer, valuing consanguinity
with a specific patch of dirt over their own safety. That is their
right, but I do not see that it is America’s obligation to risk
its citizens’ lives to protect this preference. Those that would
stay, would do so at their own peril. By offering them New Israel,
we would be guaranteeing to Israelis a homeland and a better life
(albeit, farther away from the Wailing Wall and Arab bombs). This
is overly generous, in my view. We would have done all that is required
of us, and more.

It
might be objected that this proposal is heartless and does not give
adequate weight to the importance Jews attach to the “Holy Land.”
I appreciate the argument that we should not let Israel and Jewry
perish. But the location is secondary; certainly, it is not worth
American lives to have the homeland in this place instead
of that place. Why must thousands of American lives be lost
to terrorism just because one subset of Jews have a preference for
an arbitrary longitude and latitude? The primary purpose of a Jewish
homeland was always to provide a sanctuary to Jews, not to give
them prime real estate. Let them build a new Wailing Wall in New
Israel if they want. It’s what Americans would do.

In
fact, Theodore Herzl, the so-called “Father of Zionism,” and the
Zionist Congress at one point considered forming a Jewish state
in both
Argentina and Uganda (see
also
link2,
link3,
link4). While these plans
were of course ultimately rejected, that they were seriously considered
indicates that it is not outrageous or antisemitic to propose a
homeland in a place other than Israel (Palestine).

If
Uganda and Argentina were once considered possible locations for
a Jewish state, why not America? Wouldn’t everyone — Americans,
Jews, Arabs — be better off? The New Israelis would be closer to
civilization and their 6 million Jewish-American cousins; the land
would no doubt be more fertile and scenic; and New Israelis would
no longer have to put up with bombings and daily fighting. The Arabs
would be happier and maybe even hate us a little bit less. They
might even tolerate any Jews remaining in Palestine, as their smaller
numbers would pose less of a political threat.

As
for America, we could save several billion dollars a year by withdrawing
aid from Egypt and eventually eliminating financial aid to Israel.
We would also get to unload some of our public lands and put it
in private hands. Additionally, Americans would no doubt benefit
from a closer relationship with the Israelis, a productive, intelligent,
and resourceful group (if that is not politically incorrect to acknowledge).
And maybe not quite as many Americans would be murdered by Israel-hating
Muslim terrorists.

October
1, 2001

Stephan
Kinsella [send him mail]
is an attorney and libertarian in Houston. His personal website
is located at www.stephankinsella.com.

The libertarian position is rather simple. A good Congressman is
one who votes properly (e.g., for lower taxes, smaller government,
etc.) and abides by the Constitution. To my knowledge, Dr. Ron Paul
is the only decent member of Congress. All the other Congress critters
routinely vote for unjust and unconstitutional laws, and surely
deserve to be thrown out of office as well as civilized society.
But we don't need politicians to be role models; that's what private
citizens are for. We just need them to bother us as little as possible,
and to work to reduce the size of government. Put it this way: given
the choice of a "moral" legislator who is a socialist
(such as Joe Lieberman) and a no-good, lying, cheating, racist,
misogynous jerk who nevertheless respects the Constitution and votes
that way, give me the jerk. A Congressman's personal character is
just about irrelevant.

In fact, the mainstream's harping on how important a federal official's
character is should give us pause. It assumes that good character
is a substitute for constitutional conduct; it seeks to elevate
form over substance. An implicit assumption is that we should look
up to politicians (we should not; they should, at most, be barely
tolerated, and only so long as they behave). The mainstream wants
politicians to be respected so that we won't chase them down with
pitchforks when they regulate and rob us. Another assumption underlying
the focus on character is that elected federal officials can have
good character; barring rare exceptions like Dr. Paul, they cannot,
since positions of such power tend to attract amoral, power-hungry
charlatans. It also implies that intentions matter more than actions
(so that miserable failures like the welfare and education systems
can be forgiven). Worst of all, yelping about character can only
serve to distract from the fundamental question of the Congressman's
political outlook and voting record.

Who cares if a legislator is a scoundrel? There appears
to be little correlation between character and unlibertarian voting:
most Congressmen are socialists regardless of their personal scruples.

Condit appears to be just one of 534 socialists in Congress, of
the flavor "moderate Democrat." To be sure, by libertarian
standards, he ought to be tarred and feathered – but for his socialist
voting record, not for the Chandra Levy mess. In fact, all
federal elected officials of whom I am aware, other than Ron Paul,
ought to be summarily impeached. Given that Condit is known as a
"conservative" or "moderate" Democrat, I suspect
that many Democrats (probably most of them) have a much worse voting
record than Condit.

So why single him out? He's no worse than the rest of them. "He
should resign from office," seems to be the growing consensus,
because he "mishandled" the Chandra Levy "situation."
Well, why? Because his affair shows he's immoral and not a good
role model? Because he didn't show sufficient "remorse"
in his interview with Connie Chung? Because he used his position
of power to seduce an intern? Because he didn't cooperate quickly
enough with the police, early on? Or maybe he didn't wear his heart
on his sleeve and beg forgiveness with a teary-eyed performance,
la Jimmy Swaggart or Bill Clinton? Or perhaps, because he didn't
grace the media with enough interviews so they could ask him more
rude, intrusive questions.

In all likelihood, he didn’t murder Levy. So what if he didn't
bare his soul before the media. To the extent he's obligated to
cooperate with the police, that does not mean he's obligated to
satisfy reporters' desires to make headlines. What about the charge
that he didn't admit his affair to the police promptly enough? Come
on. Does anyone really think it mattered? Police are incompetent,
and criminals are not always caught. Assuming he had nothing to
do with her disappearance, she was probably a victim of some freakish
rape-murder. In that case, his earlier confession to the police
of an irrelevant affair would very likely not have aided the cops.

And let's put the tragedy in context. Granted, Levy, assuming she
was the victim of some ghastly crime, was a nominally innocent victim.
But we can assume she was a Democrat (she worked for a Democrat,
was from California, and comes from a liberal family) and enamored
of Washington power. She was also a floozy, willing to inflict possible
shame and misery on Condit's wife (granted, this is not as bad as
being a Democrat; I'd take a slutty tax-cutter over a prudish welfare-statist
any day). So, yes, it's tragic that a ditzy, power-besotted socialist
homewrecker appears to have met with an unfortunate fate, but let's
put it in perspective. I mean, it could have been a paleo-libertarian
vote that was lost, or the Pope being assassinated, or a baby killed
by its "post-partum-depressed" mom. I suspect Mrs. Condit,
for one, is not consumed with grief at the thought of poor Miss
Levy's fate.

What about the argument that Condit "took advantage"
of an intern who was "just a kid"? Oh, come on. She was
an adult, responsible for her own choices. And as to Condit's alleged
refusal to “apologize” – well, to whom? For what? He ought
to apologize to his wife, of course, but to Levy's parents? Apparently,
they reared a Monica Lewinsky-like socialist drone of dubious morals
and in awe of political power, who would naturally want to sleep
with a Powerful Politician (even if married). Don't they
owe the apology, for unleashing such a creature on the country?

So
let's not allow the drumbeat of Condit criticism to distract us
from the real issue: the Congress is infested by marauding socialists,
of which Condit is not even the worst. Until we are ready to start
impeaching these varmints based on their votes and political views,
let's leave Condit be, and stay on the lookout for some real tragedies
to bemoan.

August
31, 2001

Stephan
Kinsella [send him mail]
is an attorney and libertarian in Houston. His personal website
is located at www.stephankinsella.com.

Conservatives,
especially neo-conservatives and former leftists, are fond of repeating
this cutesy adage. Not having gone through a youthful leftist stage
myself, and indeed viewing former
leftists with some suspicion, I do not fully agree
with it. The first half is clearly bunk. It seems designed to assuage
the guilty consciences of former lefties who, like David Horowitz,
whitewash the evil of their earlier leftism by describing it as
"noble" and "high-minded," albeit naive. This
part of the adage ought to be replaced with something like, "If
you're not a liberal in your youth, you're not an economic illiterate
herd-follower run solely by emotion."

The
part about the brain contains a germ of truth, however, and it can
be distilled down to this libertarian proposition: any good, honest,
intelligent, justice-seeking person can hardly fail to recognize
that the state is a criminal or near-criminal enterprise, run by
snake-oil salesmen and hucksters, which rides roughshod over the
rights of its own citizens; and, at the very least, that the state
must be watched closely, and limited as much as possible.

In
Jonah Goldberg's most recent
attack on libertarians, "The Libertarian Lobe"
(National Review Online, June 22, 2001), he seeks to stand
the saying on its head. Instead of equating youthful immaturity
and soft-headedness with pro-state liberalism, as the adage has
it, Goldberg equates it with anti-state libertarianism. As the subtitle
to his article snidely puts it, "Libertarianism tells kids
everything they want to be told."

Goldberg's
implication here is that libertarianism is somehow fallacious, if
it can only attract the attentions of the naive and inexperienced,
if clever and passionate, young. (He conveniently forgets that Murray
Rothbard, whom he recognizes as being a key libertarian figure,
was a radical libertarian well into his sixties.) I say "implication,"
because Goldberg never quite specifies what is wrong with libertarianism,
much less does he try to provide an argument. Instead of an argument,
he offers merely his own self-contradictory opinions, which are
laced with condescension, attitude, smug snideness, and ad hominem,
and full of confusion and misstatements about the nature of libertarianism.

Note
Goldberg's smugness, but vacuity, when he equates libertarians and
their passion for liberty and rights to those teens who "realize
for the first time what Pink Floyd's u2018The Wall' is really about";
those deluded youngsters who "convince themselves that just
because they've thought of something for their first time they believe
they've thought of it for the first time, period. This translates
into a kind of arrogance where some kids think no one else can really
understand something as well as they can." I am not sure how
this is supposed to be an argument. It may be an effective way of
expressing Goldberg's personal opinions, but given that he
is not a libertarian and not even a very good conservative (he apparently
loves Lincoln and hates federalism/states' rights), and simply an
intellectual lightweight neocon, it is not clear why anyone would
care.

Goldberg's
confusion about libertarianism is manifest. Take, for instance,
his notion that "Libertarianism is an ideology best suited
for young folks. It compellingly tells kids everything they want
to be told." Were it only so! If the young naturally hated
the state and fervently supported individual rights, it is unlikely
as many of them would support, in their later years, the degree
of statism prevalent today. Unfortunately, however, twenty-somethings
seem to be at least as statist as older adults. They do not rally
in sufficient numbers around libertarian principles and corollaries
such as:

• You
  have no right to education, a car, a home, food, support, etc.
  from the state;
• every
  person is responsible for his own sustenance, and actions;
• if
  you commit an act of aggression, you deserve severe punishment;
• you
  have no right to outlaw behavior of others that you do not like,
  unless it amounts to aggression;
• the
  lies you have been told in school about Lincoln, "democracy,"
  and so forth are just that;
• we
  live under an illegal, tyrannical government, and most of our
  fellow citizens are semi-socialists who help support it, and there
  is no end in sight; etc.

Goldberg
is apparently ignorant about the basic principles of libertarianism,
leading him to attack straw men. It is not about "indulging"
self-interest, or rejecting experience, wisdom, and tradition. It
is, instead, about scrupulously adhering to justice by refusing
to participate in or condone the initiation of violent force against
the body or property of innocent victims.

Clearly,
libertarians are not opposed to force per se, as Goldberg
presumes. We are not pacifists at all; we adamantly support the
right to use force in response to aggressive force, to defend
or retaliate against the aggressor. To mount a substantive attack
on libertarianism, Goldberg would have to argue that it is permissible
to initiate force against an innocent person who has not himself
violated anyone else's rights. But he does not even hint at an alternative
theory showing that the aggression is justified, other than his
befuddled paean to "principled" "compromise with
reality." And of course he cannot do it, because libertarianism
is correct. Yes, he can ignore libertarianism, participate in statism,
and advocate neocon views. But he cannot justify the mixed economy
he advocates. Paraphrasing the great Roman jurist Papinian,
"It is easier to be a neocon (or socialist) than to justify
it."

Further
examples of Goldberg's incoherence and illogic abound. He writes,
of a recent debate between himself and libertarian Michael Lynch:
"neither of us fit the caricatures of our respective causes.
He's neither a radical libertine individualist nor a Lincoln-hating
states' rightser who confuses nostalgia for a fictional past with
an achievable agenda for the future (golly, who could I be talking
about?)."

The
most consistent and principled libertarians – anarcho-capitalists
and paleolibertarians – are not libertine, nor do we have any
nostalgia for a slave-ridden past, nor do we harbor any naive, utopian
notions that any kind of radical improvement is around the corner.
Goldberg's breezy "golly" comment almost certainly refers
to paleolibertarian Lew Rockwell & co, revealing his mischaracterization
of libertarians to be disingenuous. Goldberg also here demonstrates
his non-conservative, neocon credentials with his implied endorsement
of Lincoln, war, and centralization.

Goldberg
adds, "Lynch is a principled libertarian who understands progress
comes only by making compromises with reality." I have no idea
what a "compromise with reality" is; I thought people
made compromises with each other. Reality is there, whether we compromise
or not. If Goldberg means that libertarians do not recognize
reality, then he is just wrong again; we recognize that aggression
cannot be justified, and that the current state largely rests on
aggression. It is Goldberg who refuses to recognize reality, for
example in his glib dismissal of the critique of the tyrant and
war-criminal Lincoln and in his implicit assumption that aggression
can be justified.

Elsewhere,
Goldberg writes of libertarians: "Just as they consider u2018state
violence' to be always and everywhere evil, they fetishize change,
assuming it to be always and everywhere good." Goldberg is
doubly wrong here. First, we libertarians do not claim that state
violence is necessarily wrong; rather, it is aggression that
is wrong, whether committed by individual or group (such as the
state). In the case of the state, all libertarians recognize that
most state laws and actions, such as laws against drugs, are aggressive,
and cannot be justified. This state violence is impermissible because
it is aimed at innocent victims.

Moreover,
anarcho-capitalist libertarians recognize that the state is inherently
aggressive, if only because it rests on a compulsory monopoly (you
cannot "opt out" of its jurisdiction) and coercive taxation.
Under this view, any government action, even delivering the mail,
is illegitimate – not because the action itself is violent,
but because the existence of the agency carrying it out depends
on violence. Thus, the anarcho-capitalist does not believe that
laws against murder and rape violate the rights of murderers and
rapists; but simply does not believe the state has the right to
tax and assume a monopoly enforcing such laws.

Second,
our author is just plain wrong that libertarians, especially paleos
and anarchists, necessarily "fetishize change." True,
some libertarians, such as Virginia Postrel, do favor "dynamism"
and oppose "stasists." But this preference is not implied
by libertarianism, as
pointed out by paleolibertarian David Gordon; and, ironically
and bizarrely, Goldberg praises Postrel's "excellent
book," The Future and Its Enemies, which sets forth
Postrel's pro-dynamist thesis, in the same column decrying libertarian
dynamists.

Our
critic's "tried-and-true trick question" that he uses
to reveal libertarian inconsistency also does not do the trick.
"Imagine a very close friend of yours were suicidal. She just
broke up with her boyfriend, lost her job, had been drinking, and
is depressed. If you knew she would feel better in the morning,
would you physically restrain her to keep her from killing herself?"
Goldberg answers, "Now the correct answer, of course, is u2018Well,
yes I would.' Because, free will and individual liberty aren't always
right." Sure, most decent people would intervene in the manner
suggested. But there are other ways to view this intervention. One,
the friend is deemed to be irrational and to have implicitly or
tacitly appointed you to make decisions for her, in her own interest,
in such cases, much like a husband can make life-or-death healthcare
decisions on behalf of an incapacitated wife. Or, two, the intervener
is willing to risk prosecution for a relatively minor offense to
save his friend's life, assuming that when she comes to her senses
the next morning, she will almost certainly forgive, maybe even
thank, him.

Another
misstatement about libertarians is that we "see freedom as
the highest, best value." This is not true at all. We simply
maintain that unprovoked aggression against the person or property
of others cannot be justified, and may be countered by responsive
(defensive or retaliatory) force. Again, I doubt Goldberg can provide
the justification for aggression that he would need, in order to
show that libertarianism is wrong.

If
this is the neocon critique of libertarianism, it looks like we
have already won the debate.

Goldberg's
implicit theory, that the natural evolution for intelligent, conservative
minded individuals is a youthful radical libertarianism, followed
by mature, compromising, unprincipled, inconsistent neo-conservatism,
is surely wrong. A better theory, as I suggested above, is that
wisdom and intelligence, combined with passion for justice and right,
leads to a libertarian respect for individual rights and to a profound
distrust for the state. Goldberg is apparently nowhere near 40 yet,
so maybe he still has time to change. I'd welcome him to the libertarian
fold, maybe even forgive him for his former heresy – but would
recommend keeping a close eye on him.

June
27, 2001

Stephan
Kinsella [send him mail]
is an attorney and unabashed libertarian in Houston. His personal
website is located at www.stephankinsella.com.

If
you are anything like me, you might be curious what other prefixes
are in store for us. It turns out that there are other, more exotic
and extreme SI prefixes on the shelf, ready to be used. Most are
not yet commonly known, but are fascinating to ponder. They are
kind of cool. These extreme prefixes include the division prefixes
atto, zepto, and yocto (I know, I know, sounds like the Marx brothers);
and the multiplier prefixes exa, zetta, and yotta (sounds like the
latest Shirley MacLaine book). The most extreme, and coolest, ones
are the unofficial vendeko (10-33) and vendeka (1033).
Wicked. We now have multi-gigabyte (GB) disk drives; soon, surely,
we will speak of disk drive, or collective network, capacity, in
terms of terabytes, petabytes, even exabytes. I can’t wait
for vendekabytes.

The
current and proposed SI prefixes are found in the table below (drawn
from various sources, including link1,
link2,
link3,
link4):

Prefixes
of the International System (SI)

Divisions

Multiples

factor

prefix

symbol

factor

prefix

symbol

10-1

deci

d

101

deca

da

10-2

centi

c

102

hecto

h

10-3

milli

m

103

kilo

k

10-6

micro

µ

106

mega

M

10-9

nano

n

109

giga

G

10-12

pico

p

1012

tera

T

10-15

femto

f

1015

peta

P

10-18

atto

a

1018

exa

E

10-21

zepto

z

1021

zetta

Z

10-24

yocto

y

1024

yotta

Y

(unofficial)

10-27

xenno

x

1027

xenna

X

10-30

???

w

1030

???

W

10-33

vendeko

v

1033

vendeka

V

10-36

???

u

1036

???

U

As
can be seen, the smaller and lesser-known division prefixes tend
to end in “o”, while the larger and less-known multiplication prefixes
tend to end in “a”. Also, the symbols for the larger multipliers
are capital letters, while those for the division prefixes are small
Roman or greek letters. This
article (p. 3, footnotes * and **) provides an explanation of
the origin of some of the SI and other prefixes. This
article gives some examples of possible uses of some of extreme
prefixes.

While
Googling
for this article, I discovered that the International Electrotechnical
Commission (IEC) has approved a set of prefixes for binary multiples,
which I had never heard of. These are for use in the computer field,
for data processing and data transmission applications. Computer
engineers and programmers typically express numbers in powers of
two because of the use of two-valued bits for computer memory and
logic (each bit can represent a 0 or a 1). A ten-bit memory register,
for example, can store 210 = 1024 different binary numbers
(bit combinations).

As
explained here
(link2),
computer professionals noticed that 210 (1024) was nearly
equal to 1000 and started using the SI prefix “kilo”
to mean 1024, and other SI prefixes to approximate other binary
quantities. This has led to confusion. For example, under the SI
system, megabyte means one million (1,000,000) bytes. Most computer
manufacturers, however, use the term megabyte to mean 220
= 1,048,576 bytes. Similarly, a kilobit usually refers to 210
= 1024 bits instead of 1000 bits.

The
new binary prefixes defined by the IEC are designed to eliminate
this confusion. For example, kibi, instead of kilo, is to be used
for 210 = 1024; and mebi, instead of mega, for 220
= 1,048,576. Thus, megabyte (MB) means 1,000,000 bytes, while mebibyte
(MiB) means 1,048,576 bytes. A tebibyte (TiB) denotes 240
= 1,099,511,627,776 bytes, while a terabyte indicates 1012
= 1,000,000,000,000 (a trillion) bytes. I would tell you what a
gibibyte (GiB) is, but I can’t stop giggling at the name. It remains
to be seen whether these binary prefixes will catch on. While they
are also cool, if a little funny, and seemingly useful, I had never
even heard of them until writing this article.

And
speaking of confusion, it’s also interesting to note that what Americans
call million (106, mega), billion (109, giga),
and trillion (1012, tera), the Brits
refer to as million, milliard, and billion (at least officially,
if not in practice).

Incidentally,
speaking of Googling, the name Google appears to be a variation
of “googol,”
itself an extremely large number (suggesting Google can find information
from a huge number of websites, I suppose). A googol
is 10100, i.e. a 1 followed by 100 zeros. (In official
SI prefix terms, a googol is approximately a yotta squared, squared.)
Even larger is the googolplex, which is equal to 10 to the power
of a googol (10googol); this number is about the same
size as the number of possible games of chess. Even larger
numbers (link2,
link3)
have been defined, such as Skewes’ number, Graham’s number, and
the Moser,
which I won’t even try to describe.

May
I be excused now, please? My brain — which contains
approximately 100
giga-neurons — is full.

January
15, 2001

Stephan
Kinsella [send him mail]
practices patent law in Houston. His website is www.stephankinsella.com.

Support
LRC

Positive
Law

Likewise,
Napster’s service is capable of numerous commercially significant
noninfringing uses, such as promotion and distribution of songs
from independent record labels or new artists, and free (authorized)
distribution of songs, in addition to sampling and “space-shifting”
(the process of sharing files between hard drives and players).
Thus, because Napster can be used for these and other significant
noninfringing uses, it is not a contributory infringer.

As
for vicarious infringement, there is only liability if Napster has
both (1) the right and ability to supervise the infringing activities
of its users; and (2) a direct financial interest in the infringing
activities. However, despite the District Court’s ruling, there
is no way for Napster to distinguish between legitimate and illegal
copying by its users. Thus, it does not have the “ability” to supervise
any infringing activities.

Second,
under the Audio Home Recording Act (AHRA), consumers have a right
to create and transfer digital music for noncommercial purposes.(4)
Because Napster users typically share files for free, the copying
is arguably for a “noncommercial purpose.” Thus, either due to a
fair use defense or the AHRA, Napster users are not direct infringers,
meaning that there is no direct infringement to which Napster can
contribute or be vicariously liable for.

Legitimacy
of Copyright Law

Redistribution
of Property

Utilitarianism

First,
even if a given policy could increase “net” wealth by redistributing
property from A to B, that does not justify the policy. The goal
of law is justice, not wealth maximization. B may be helped “more”
than A is harmed by redistribution, but how does this justify the
harm done to A? By the reasoning of utilitarians, we could not condemn
every act of theft, rape, or murder; we would have to weigh the
benefit to the thief, rapist, or murderer against the harm suffered
by the victim, to determine whether or not the crime should be permitted.
In cases where the aggressor enjoys his crime “more” than it harms
the victim, it is not a crime at all, and should be permitted, since
net wealth is increased. Clearly, this is a wholly immoral and unprincipled
view.

Utilitarian
analysis is thoroughly confused and bankrupt: talk about increasing
the size of the pie is methodologically flawed; there is no clear
evidence that the pie size is increased by IP rights; and in any
event pie growth simply does not justify the use of force against
the otherwise-legitimate property of others. For these reasons,
utilitarian defenses of IP are not persuasive.

Natural
Law and the Second Homesteading Principle

It
is scarcity that is the hallmark of ownable property, and it is
by first possession that one comes to own such ownable property.
This can be seen by examining the purpose and nature of property
rights. Were things in infinite abundance, there would be no need
for property rights. But in the real world, there are scarce resources.
These things can be used and controlled by only a single person.

Because
of this fact of scarcity, there is always the possibility of interpersonal
conflict over scarce resources. If I take your lawnmower, you no
longer have it. If I take over your house and your land, you lose
control of it. These tangible goods are scarce. Property rights
exist to allocate ownership in scarce resources to a specified owner,
thereby permitting conflicts over the use of these scarce resources
to be avoided (and resolved). Thus, it is only things that are scarce,
in the economic sense, that can be property. This is why, for example,
there can be ownership of tangible, scarce resources such as land,
cars, printing press, paper, and ink. Moreover, in the libertarian
and conservative view, these property rights in scarce resources
are allocated in accordance the Lockean homesteading rule, in which
unowned scarce resources are homesteaded by the first possessor.(9)

Notes

1.
Further information about the Napster lawsuit may be found at:
http://www.riaa.com/napster_legal.cfm
and http://www.napster.com/pressroom/.
See, e.g., the RIAA’s
motion for preliminary injunction and Napster’s
brief appealing the district court’s preliminary injunction.

5.
U.S.
Const. art. I, 8.

6.
On the defects of utilitarianism and interpersonal utility comparisons,
see Ludwig von Mises, Human
Action, 3d. rev. ed., Chicago: H. Regnery; Murray N. Rothbard,
“Praxeology, Value Judgments, and Public Policy,” esp. pp. 90-99,
and “Toward a Reconstruction of Utility and Welfare Economics,”
in The
Logic of Action One (Cheltenham, UK: Edward Elgar, 1997),
esp. pp. 90-99; idem, Man, Economy and State (Auburn AL: Mises Institute,
1993); Jeffrey M. Herbener, “The
Pareto Rule and Welfare Economics,” Review of Austrian Economics,
v. 10, no. 1, 1997: pp. 79-106; Anthony de Jasay, Against Politics:
On Government, Anarchy, and Order (London and New York: Routledge,
1997), pp. 81-82, 92, 98, 144, 149-151. On scientism and empiricism,
see Rothbard, “The Mantle of Science,” in The
Logic of Action One; Hans-Hermann Hoppe, “In
Defense of Extreme Rationalism: Thoughts on Donald McCloskey’s
The
Rhetoric of Economics,” Review of Austrian Economics
3 (1989): 179. On epistemological dualism, see Luwdig von Mises,
The Ultimate Foundation
of Economic Science: An Essay on Method, 2d ed. (Kansas
City: Sheed Andrews & McMeel, 1962); idem, Epistemological
Problems of Economics, George Reisman, trans. (New York:
New York University Press, 1981); Hans-Hermann Hoppe, Economic
Science and the Austrian Method (Auburn, Alabama: Ludwig
von Mises Institute, 1995); idem, “In
Defense of Extreme Rationalism.”

7.
It is not merely that all costs do not have a market price.
As Mises showed, even for goods that do have a market price, the
price does not serve as a measure of the good’s value. As
Mises states: “Although it is usual to speak of money as a measure
of value and prices, the notion is entirely fallacious. So long
as the subjective theory of value is accepted, this question of
measurement cannot arise.” Ludwig von Mises, The
Theory of Money and Credit, H.E. Batson, trans. (Indianapolis:
Liberty Fund, [1912] 1980), p. 51 (in chapter 2,”On the Measurement
of Value”). Also: “Money is neither a yardstick of value nor of
prices. Money does not measure value. Nor are prices measured in
money: they are amounts of money.” Ludwig von Mises, Socialism:
An Economic and Sociological Analysis, 3d rev. ed., J. Kahane,
trans. (Indianapolis: Liberty Press, 1981), p. 99); see also Mises,
Human
Action,
pp. 96, 122, 204, 210, 217, 289.

9.
On ethical justifications of the libertarian conception of individual
rights, including private property rights and the Lockean homesteading
rule, see Hans-Hermann Hoppe, A
Theory of Socialism and Capitalism (Boston: Kluwer Academic
Publishers, 1989), ch. 7; idem, The
Economics and Ethics of Private Property (Boston: Kluwer
Academic Publishers, 1993); Murray N. Rothbard, The
Ethics of Liberty (New York and London: New York University
Press, 1998 [1982]); idem, “Justice and Property Rights,” in The
Logic of Action One
(Cheltenham, UK: Edward Elgar, 1997); N. Stephan Kinsella, “A Libertarian
Theory of Punishment and Rights” 30 Loyola
of Los Angeles Law Review 607 (Spring 1996) (previous
version); idem, “New
Rationalist Directions in Libertarian Rights Theory,” Journal
of Libertarian Studies 12, no. 2 (Fall 1996): 313-326.

10.
This assumes that Arthur does not have a contract with Brown
which prohibits Brown from making a copy of Arthur’s book-pattern.
For further discussion of this matter, see the my forthcoming article
"Intellectual Property: A Libertarian Critique," referenced
below.

September
4, 2000

N.
Stephan Kinsella is an intellectual property attorney in Houston.
The views expressed herein are merely the current speculative opinion
of the author, and should not be attributed to any other person
or entity. He has never used Napster and does not download MP3 files.
A more detailed exposition of some of the ideas in this article
can be found in the author’s article "Against
Intellectual Property." Email: Stephan@StephanKinsella.com.
The author thanks Gil Guillory for helpful comments on an earlier
draft. His personal website is located at www.stephankinsella.com.

This case gives rise to the question: Should Napster be shut down by force of law? The answer can be yes only if Napster is violating the individual rights – property rights – of others. To determine this we can ask a two-pronged question: (1) Is Napster violating any positive law?, and (2) If so, is the law legitimate? The second question is necessary because, even if Napster is technically in violation of a legal prohibition, we can only say that Napster “should” be subject to the law’s punishments, if the law is itself legitimate. To hold otherwise is to adopt legal positivism and the moral relativism from which it springs. Let us, then, take each of these two questions in turn.

Positive Law

Likewise, Napster’s service is capable of numerous commercially significant noninfringing uses, such as promotion and distribution of songs from independent record labels or new artists, and free (authorized) distribution of songs, in addition to sampling and “space-shifting” (the process of sharing files between hard drives and players). Thus, because Napster can be used for these and other significant noninfringing uses, it is not a contributory infringer.

As for vicarious infringement, there is only liability if Napster has both (1) the right and ability to supervise the infringing activities of its users; and (2) a direct financial interest in the infringing activities. However, despite the District Court’s ruling, there is no way for Napster to distinguish between legitimate and illegal copying by its users. Thus, it does not have the “ability” to supervise any infringing activities.

Second, under the Audio Home Recording Act (AHRA), consumers have a right to create and transfer digital music for noncommercial purposes.(4) Because Napster users typically share files for free, the copying is arguably for a “noncommercial purpose.” Thus, either due to a fair use defense or the AHRA, Napster users are not direct infringers, meaning that there is no direct infringement to which Napster can contribute or be vicariously liable for.

Legitimacy of Copyright Law

Redistribution of Property

Utilitarianism

First, even if a given policy could increase “net” wealth by redistributing property from A to B, that does not justify the policy. The goal of law is justice, not wealth maximization. B may be helped “more” than A is harmed by redistribution, but how does this justify the harm done to A? By the reasoning of utilitarians, we could not condemn every act of theft, rape, or murder; we would have to weigh the benefit to the thief, rapist, or murderer against the harm suffered by the victim, to determine whether or not the crime should be permitted. In cases where the aggressor enjoys his crime “more” than it harms the victim, it is not a crime at all, and should be permitted, since net wealth is increased. Clearly, this is a wholly immoral and unprincipled view.

Utilitarian analysis is thoroughly confused and bankrupt: talk about increasing the size of the pie is methodologically flawed; there is no clear evidence that the pie size is increased by IP rights; and in any event pie growth simply does not justify the use of force against the otherwise-legitimate property of others. For these reasons, utilitarian defenses of IP are not persuasive.

Natural Law and the Second Homesteading Principle

It is scarcity that is the hallmark of ownable property, and it is by first possession that one comes to own such ownable property. This can be seen by examining the purpose and nature of property rights. Were things in infinite abundance, there would be no need for property rights. But in the real world, there are scarce resources. These things can be used and controlled by only a single person.

Because of this fact of scarcity, there is always the possibility of interpersonal conflict over scarce resources. If I take your lawnmower, you no longer have it. If I take over your house and your land, you lose control of it. These tangible goods are scarce. Property rights exist to allocate ownership in scarce resources to a specified owner, thereby permitting conflicts over the use of these scarce resources to be avoided (and resolved). Thus, it is only things that are scarce, in the economic sense, that can be property. This is why, for example, there can be ownership of tangible, scarce resources such as land, cars, printing press, paper, and ink. Moreover, in the libertarian and conservative view, these property rights in scarce resources are allocated in accordance the Lockean homesteading rule, in which unowned scarce resources are homesteaded by the first possessor.(9)

Notes

1. Further information about the Napster lawsuit may be found at: http://www.riaa.com/napster_legal.cfm and http://www.napster.com/pressroom/. See, e.g., the RIAA’s motion for preliminary injunction and Napster’s brief appealing the district court’s preliminary injunction.

5. U.S. Const. art. I, 8.

6. On the defects of utilitarianism and interpersonal utility comparisons, see Ludwig von Mises, Human Action, 3d. rev. ed., Chicago: H. Regnery; Murray N. Rothbard, “Praxeology, Value Judgments, and Public Policy,” esp. pp. 90–99, and “Toward a Reconstruction of Utility and Welfare Economics,” in The Logic of Action One (Cheltenham, UK: Edward Elgar, 1997), esp. pp. 90–99; idem, Man, Economy and State (Auburn AL: Mises Institute, 1993); Jeffrey M. Herbener, “The Pareto Rule and Welfare Economics,” Review of Austrian Economics, v. 10, no. 1, 1997: pp. 79–106; Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (London and New York: Routledge, 1997), pp. 81–82, 92, 98, 144, 149–151. On scientism and empiricism, see Rothbard, “The Mantle of Science,” in The Logic of Action One; Hans-Hermann Hoppe, “In Defense of Extreme Rationalism: Thoughts on Donald McCloskey’s The Rhetoric of Economics,” Review of Austrian Economics 3 (1989): 179. On epistemological dualism, see Luwdig von Mises, The Ultimate Foundation of Economic Science: An Essay on Method, 2d ed. (Kansas City: Sheed Andrews & McMeel, 1962); idem, Epistemological Problems of Economics, George Reisman, trans. (New York: New York University Press, 1981); Hans-Hermann Hoppe, Economic Science and the Austrian Method (Auburn, Alabama: Ludwig von Mises Institute, 1995); idem, “In Defense of Extreme Rationalism.”

7. It is not merely that all costs do not have a market price. As Mises showed, even for goods that do have a market price, the price does not serve as a measure of the good’s value. As Mises states: “Although it is usual to speak of money as a measure of value and prices, the notion is entirely fallacious. So long as the subjective theory of value is accepted, this question of measurement cannot arise.” Ludwig von Mises, The Theory of Money and Credit, H.E. Batson, trans. (Indianapolis: Liberty Fund, [1912] 1980), p. 51 (in chapter 2,”On the Measurement of Value”). Also: “Money is neither a yardstick of value nor of prices. Money does not measure value. Nor are prices measured in money: they are amounts of money.” Ludwig von Mises, Socialism: An Economic and Sociological Analysis, 3d rev. ed., J. Kahane, trans. (Indianapolis: Liberty Press, 1981), p. 99); see also Mises, Human Action, pp. 96, 122, 204, 210, 217, 289.

9. On ethical justifications of the libertarian conception of individual rights, including private property rights and the Lockean homesteading rule, see Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Boston: Kluwer Academic Publishers, 1989), ch. 7; idem, The Economics and Ethics of Private Property (Boston: Kluwer Academic Publishers, 1993); Murray N. Rothbard, The Ethics of Liberty (New York and London: New York University Press, 1998 [1982]); idem, “Justice and Property Rights,” in The Logic of Action One (Cheltenham, UK: Edward Elgar, 1997); N. Stephan Kinsella, “A Libertarian Theory of Punishment and Rights” 30 Loyola of Los Angeles Law Review 607 (Spring 1996) (previous version); idem, “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies 12, no. 2 (Fall 1996): 313–326.

10. This assumes that Arthur does not have a contract with Brown which prohibits Brown from making a copy of Arthur’s book-pattern. For further discussion of this matter, see my monograph Against Intellectual Property.

Stephan Kinsella [send him mail] is an intellectual property attorney in Houston. The views expressed herein are merely the current speculative opinion of the author, and should not be attributed to any other person or entity. He has never used Napster and does not download MP3 files. A more detailed exposition of some of the ideas in this article can be found in the author’s article Against Intellectual Property. The author thanks Gil Guillory for helpful comments on an earlier draft. His personal website is located at www.stephankinsella.com.

The Best of Stephan Kinsella

Kids
are generally not allowed to engage in harmful or dangerous activities
(such as parachuting, rock-climbing) or to take actions with permanent
consequences (such as getting a tattoo, having a child) without
parental consent. The child’s consent alone is not enough. The argument
seems to be that cigarettes, too, are harmful or have permanent
consequences. Thus the child is not yet competent to choose to permanently
harm himself by smoking. The tobacco companies have been browbeaten
into repeating this line. R.J.
Reynolds states on its website that it “does not want children
to smoke, not only
because it is illegal to sell to minors in every state, but also
because
of the inherent health risks of smoking and because children lack
the
maturity of judgment to assess those risks.”

But
this argument is flawed. Even if we assume that smoking can
increase the risk of disease, it is widely known that quitting smoking
greatly reduces smoking-related risks. After all, as
anti-smoking fanatics routinely say, It is never too late
to stop smoking. They maintain, for example, that by quitting
smoking you will live longer and have a lower chance of having a
heart attack or cancer. Anti-smoking zealots and other assorted
health nuts never quite come right out and say that if you quit
smoking early enough, you eventually get back to normal. Yet, some
do admit that, at least for heart disease, “About 15 years
after quitting the risk is close to that of persons who have never
smoked.” And
they acknowledge that the sooner you quit, the better.

But
all this means that youthful smoking, by itself, does not pose a
serious long-term health threat. Take a boy who starts smoking at
age 15. When he turns 18, he has already been smoking for three
years. At that point, he is mature enough to stop smoking, if he
wants. Surely, if he never smokes again, the effects of three youthful
years of smoking will wane as the years go by. It does not seem
plausible that a few years of smoking in his teens will appreciably
increase long-term health risks.

On
the other hand, as an adult, he can now decide to continue smoking,
despite the risks of doing so. This continued smoking may indeed
lead to detrimental health consequences down the road, if it continues
long enough. But any long-term harm incurred will be due to his
decisions, as an adult, to continue smoking. It will not be because
of a few years of youthful fun. Thus, the kid’s smoking does not
pose a long-term danger to his health. Only continued smoking after
he turns 18 does — but such a decision is within the adult’s
rights.

But
wait, it could be argued, the problem in this theory is that tobacco
(nicotine) is addictive. The newly-minted smoking adult cannot simply
choose to quit smoking, because of the addiction inflicted on this
body when he was a minor. Thus, because tobacco is addictive, the
kid is inflicting a long-term, permanent harm on himself, which
a child is not competent to do.

Rubbish.
Addiction is a myth. It is incompatible with free will. The 18-year
old clearly has a choice to continue smoking or not. The fact that
his body is chemically addicted to nicotine simply means that there
is a cost incurred — withdrawal symptoms, and the like — if he chooses
to quit smoking. But all choices have opportunity costs, and the
choice to stop smoking is no different than any other in this regard.

What
about the argument that parents have the right to prohibit their
kids from smoking, and most parents do oppose their kids smoking,
and thus selling to kids presumptively is done in violation of the
parent’s wishes? Some parents do permit their kids to make purchases,
if not for their own use, then for the use of adults — e.g., Dad sends
Junior down to the 7-11 to pick up a pack of Marlboro Lights. Why
should this sale be prohibited? As for kids who buy and smoke cigarettes
against their parents’ wishes — it is the parents’ job to discipline
their kids, not tobacco companies or convenience stores. Forcing
Junior to smoke a whole pack of cigarettes until he’s blue in the
face; or making him eat two or three cigarettes, as a boyhood friend
of mine experienced, ought to be sufficient to put the fear of God
in him for a while.

So
I say, let’s bring back the Joe Camel mascot — and recruit
Barney, Mickey Mouse, and Pokemon while we’re at it. Smoking is
undeniably cool. Let people enjoy it when they can. Smoking is for
the young.

July
25, 2000

N.
Stephan Kinsella is a patent lawyer in Houston. He does not engage
in the nasty habit of smoking cigarettes. Obviously, he does not
have any children yet. His personal website is located at www.stephankinsella.com.